U.S. DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
WHISTLEBLOWER PROTECTION ADVISORY COMMITTEE
Monday, April 20, 2015
1:03 p.m.
Frances Perkins Building
200 Constitution Avenue, N.W., Room N-4437
Washington, D.C.
2
PRESENT:
Emily Spieler, Chair Dr. David Michaels Rob Swick Anthony Rosa Louise Betts Jon Brock Eric Frumin Kenneth Wengert Jennifer "J.J." Rosenbaum Gregory Keating Robert Miller Rina Tucker-Harris Christine Dougherty Ava Barbour Richard Moberly Marcia Narine Nancy Lessin Eric Harbin Megan Guenther Tom Devine 3
A G E N D A
PAGE
Welcome and Introductions 4 Chair Emily Spieler
Welcome 16 Dr. David Michaels Assistant Secretary of Labor for OSHA
DWPP Update 52 Eric Harbin, DWPP Acting Director
Clarification of the Investigative Standard 110 For OSHA Whistleblower Investigations Megan Guenther
Public Comment Period
4
EXHIBITS
EXHIBIT DESCRIPTION PAGE
1 OSHA whistleblower investigation 77
data
2 Investigation data 77
3 OSHA memorandum for regional 111
administrators
4 4/1/15 public comment letter 126
5-A Know Your Rights, English 127
5-B Know Your Rights, Spanish 127
6 NBC news report 127
5
1 P R O C E E D I N G S [1:03 p.m.]
2 WELCOME AND INTRODUCTIONS
3 CHAIR SPIELER: This is the Whistleblower
4 Protection Advisory Committee, and I'm Emily Spieler.
5 I'm honored to chair this committee.
6 Before we get started, I'd like to ask -- I
7 think it's Rob --
8 MR. SWICK: Right here.
9 CHAIR SPIELER: Okay. Is going to give us
10 the required safety and other instructions.
11 MR. SWICK: Thank you, Emily.
12 Welcome everyone to this gorgeous spring day
13 in the Nation's Capital. I hope you get the
14 opportunity to take in some of the foliage. It's most
15 beautiful.
16 I'm Rob Swick, the director of the
17 Whistleblower Protection Programs, and I welcome you
18 all here today.
19 Just a few words about safety and related
20 events.
21 Most importantly, the bathrooms -- you can go
22 either direction, pretty much in any direction, you'll 6
1 be able to find one with a water fountain and so forth
2 and so on.
3 Now, there's two types of an emergency event
4 in this building, something called a shelter in place
5 and then the call to exit.
6 In a shelter in place situation, we're good.
7 We're right where we need to be. You stay put.
8 In the event of an evacuation, we'll be going
9 out this back door here and straight out that stairway,
10 all the way out and just follow the herd, and we'll,
11 you know, try to work it out there.
12 There is a snack bar on this floor, on this
13 corridor over here. There is a cafeteria that runs
14 till 3:00 o'clock, I believe, on the sixth floor, and
15 there's various vending machines throughout. I dare
16 you to find them.
17 Also, I remind everyone please to silence
18 your phones and, you know, put them on quiet, and if
19 you have any questions, see me or Megan Smith or any
20 member of DWPP. DWPP people will give you a hand.
21 With that, thank you, Emily.
22 CHAIR SPIELER: Okay. Thank you. 7
1 As I think most of you know, this committee
2 was chartered and then recently re-chartered for a
3 second two-year term, and our members were appointed
4 for staggered terms.
5 We're delighted to welcome one new member
6 from the labor side, Jennifer "J.J." Rosenbaum.
7 And as you also know, this committee is
8 broadly charged to make recommendations regarding the
9 policies and implementation of whistleblower
10 investigations in the Department of Labor and
11 specifically in OSHA, I guess, in the end, to help
12 improve the situation for whistleblowers, with the
13 long-term goal of allowing people to come forward
14 regarding concerns without any fear of retaliation, and
15 when retaliation occurs, to be able to rely on OSHA to
16 help people out.
17 Some of you have not been to one of these
18 committee meetings before, but as you know, it's our
19 custom to have everyone in the room introduce
20 themselves before we get started with the committee
21 business, and then we will move on to the committee's
22 business, and as you know, we will be meeting this 8
1 afternoon and tomorrow.
2 Today, we will be hearing from Dr. David
3 Michaels and from the Whistleblower Directorate before
4 our break, and after the break, we will also be
5 discussing the current clarification of the
6 investigation standard for whistleblower
7 investigations, and finally, today, hearing public
8 comment, and we do have some public comments that we
9 will be receiving.
10 We will then adjourn until tomorrow, and our
11 primary agenda item for tomorrow is to review, discuss,
12 and hopefully transmit to OSHA the recommendations of
13 the Working Group on Best Practices in Industry.
14 We will close our meeting tomorrow with a
15 discussion of our next steps as a committee.
16 So, with that, I'm going to turn to Louise at
17 my left -- actually, why don’t we do it this way? We
18 will first have the members of the committee introduce
19 themselves, and if you could say what your role is on
20 the committee, that would be helpful.
21 We will then turn to the people who work for
22 OSHA, starting with Dr. Michaels, and then we will ask 9
1 the rest of you in the room to introduce yourselves.
2 It's my understanding that the ARAs from
3 around the country are here joining us, and I
4 particularly -- we always do have everyone introduce
5 themselves, but I am particularly interested to learn
6 who you are and hope that our work will be of
7 assistance in the work you do on a continuing basis.
8 So, why don’t we start with John?
9 MR. BROCK: John Brock. I'm a public member
10 of the committee and a member of the Best Practices
11 Working Group.
12 MR. FRUMIN: Eric Frumin, labor rep from the
13 Labor Union Federation Change To Win.
14 MR. WENGERT: Ken Wengert. I am one of the
15 management representatives with Kraft Foods out of
16 Chicago.
17 MS. ROSENBAUM: J.J. Rosenbaum. I'm one of
18 the labor representatives with the National Guest
19 Worker Alliance.
20 MR. KEATING: I'm Greg Keating. I'm a
21 management rep from Littler in Boston, and I'm on the
22 Best Practices Committee. 10
1 MR. MILLER: I'm Bob Miller. I'm with the
2 U.S. Department of Transportation, Federal Motor
3 Carrier Safety Administration, and I'm the Federal
4 Government rep.
5 MS. TUCKER-HARRIS: Good afternoon. I'm Rina
6 Tucker-Harris. I'm with the Consumer Financial
7 Protection Bureau, and I'm also a Federal
8 representative.
9 MS. DOUGHERTY: Christine Dougherty. I
10 represent the State Plan states.
11 MS. BARBOUR: Ava Barbour. I'm a labor
12 representative from the United Auto Workers Union.
13 MR. MOBERLY: I'm Richard Moberly. I'm a law
14 professor at the University of Nebraska College of Law,
15 and I'm a public representative.
16 MS. NARINE: Marcia Narine, law professor at
17 St. Thomas University, and I also consult corporations
18 on corporate governance. I'm a management
19 representative.
20 MS. LESSIN: I'm Nancy Lessin. I'm a labor
21 representative. I'm with the United Steelworkers and
22 Tony Mazzocchi Center. 11
1 DR. MICHAELS: We'll go through the OSHA
2 members here.
3 My name is David Michaels. I'm Assistant
4 Secretary of Labor for OSHA.
5 MR. HARBIN: My name is Eric Harbin. I'm the
6 Acting Director for the Directorate of Whistleblower
7 Protections Programs.
8 MR. ROSA: Good afternoon. I'm Anthony Rosa.
9 I'm the Deputy Director for the Directorate of
10 Whistleblower Protection Programs, and I'm also the
11 designated Federal official for WPAC.
12 MS. BETTS: I'm Louise Betts with the Office
13 of the Solicitor, and I'm counsel to the WPAC.
14 CHAIR SPIELER: So, Rob, if you could carry
15 the mike back to people --
16 MR. ROLFSEN: I'm Bruce Rolfsen. I'm a
17 writer, Bloomberg BNA, occupational safety and health
18 reporter.
19 MS. ABRAMS: Good afternoon. Adele Abrams
20 representing American Society of Safety Engineers.
21 MR. LUNDEGREN: Bruce Lundegren, Office of
22 Advocacy, U.S. Small Business Administration. 12
1 MS. SMITH: Meghan Smith, Directorate of
2 Whistleblower Protection Programs, WPAC liaison, and
3 I'd like to remind everyone who's observing to please
4 sign your name in the back of the room. Thank you.
5 MS. BERKOWITZ: Debbie Berkowitz, OSHA.
6 MS. JOHNSON: Marisa Johnson, Whistleblower
7 Directorate.
8 MS. GARAHAN: Mary Ann Garahan. I'm the
9 newly selected director of the Directorate of the
10 Whistleblower Protection Program.
11 MR. ERSKINE: Jeff Erskine, Acting Assistant
12 Regional Administrator for the Whistleblower Protection
13 Program, Region I, Boston.
14 MR. MABEE: Michael Mabee. I'm a supervisory
15 investigator for the Whistleblower Protection in Region
16 I.
17 MR. MENDELSON: Rich Mendelson. I'm the
18 Deputy Regional Administrator in OSHA, Region II, New
19 York, and I'm a member of the Whistleblower Executive
20 Steering Committee for OSHA.
21 MS. WIGGER: Hi. Teri Wigger. I'm the
22 Assistant Regional Administrator in Region II, New 13
1 York.
2 MS. LOREK: Hi. I'm Karena Lorek. I'm
3 Assistant Regional Administrator in region VII, Kansas
4 City.
5 MR. CROUSE: Tim Crouse, supervisory
6 investigator, representing Region V, Chicago.
7 MR. ZUCKERMAN: Hi. My name is Jason
8 Zuckerman, and I represent employees in private
9 practice.
10 MR. ROBINSON: Hello. Antione Robinson,
11 Assistant Regional Administrator, Region IV, Atlanta.
12 MR. RUDZKI: Good afternoon. Jack Rudzki,
13 regional supervisory investigator in Region III,
14 Philadelphia.
15 MR. GOSSMAN: I am Steve Gossman, the ARA in
16 Region X.
17 MR. WILSON: Hello. Cory Wilson, ARA, Region
18 VIII, Denver.
19 MR. PAUL: Hello. Josh Paul, Acting ARA,
20 Region IX in San Francisco.
21 MR. FAIRCHILD: Cleveland Fairchild, program
22 analyst with the Director of Whistleblower Protection 14
1 Programs.
2 MS. STEWART: Christine Stewart, acting
3 division -- policy division chief, DWPP.
4 MR. LERNER: Mark Lerner, Office of the
5 Solicitor, Division of Occupational Safety and Health.
6 MS. GUENTHER: Megan Guenther, Office of the
7 Solicitor, Fair Labor Standards Division.
8 MR. BARAB: Jordan Barab, Deputy Assistant
9 Secretary, OSHA.
10 MS. SWANN: Gail Swann, management analyst,
11 DWPP.
12 MR. LY: Viet Ly, program analyst, DWPP.
13 MR. BLANCATO: Phil Blancato, investigative
14 specialist, DWPP.
15 MS. DARBY: Kimberly Darby, OSHA's Office of
16 Communications.
17 MS. GIVENS: Laura Givens. I'm with DWPP.
18 MS. FALK: Sara Falk. I'm with DWPP.
19 MR. BARRETT: Otis Barrett, DWPP.
20 MR. BROECKER: Brian Broecker, DWPP.
21 MS. SEEMAN: And to carry on the chain here,
22 I'm Laura Seeman, Division Chief for Field Operations, 15
1 DWPP.
2 MR. HOLCOMB: And I'll stop it. I'm Sid
3 Holcomb, OSHA Office of Communications.
4 MR. CHARTIER: I'm George Chartier, OSHA
5 Communications.
6 MR. SWICK: One more best practice, Emily,
7 for the group, just a reminder that this meeting is on
8 the record. So, if you spare our folks, try to talk
9 one at a time, no cross talk, and again, remember to
10 sign in if you haven’t.
11 Thank you, Emily.
12 CHAIR SPIELER: Okay. So, I actually was
13 going to echo that, remembering that this is a public
14 meeting, and we actually, as a committee, are very
15 committed to full transparency.
16 Detailed minutes are prepared after this
17 meetings, and subcommittee meetings and all informal
18 meetings of the work groups are all open to the public,
19 and there are notices posted for those meetings.
20 So, as we go forward and we discuss work
21 after this meeting that the committee or work groups
22 will be taking up, you will have the opportunity to 16
1 usually listen in, frankly, since often it's done by
2 telephone conference call, if you would like, and that
3 is something we feel very comfortable about.
4 We're very interested in having input from
5 the public where that seems appropriate.
6 And with that, I'm going to turn this over to
7 Dr. Michaels.
8 WELCOME
9 DR. MICHAELS: Good afternoon. Thank you so
10 much. It's really my pleasure to be with you today.
11 Let me also begin with some thanks, first to
12 thank all of you. This is a very important committee,
13 and it's a very well-functioning committee that really
14 has made a big contribution to our work, and we're
15 grateful.
16 I'd like to welcome J.J. and Bob. I think
17 this is the first meeting for the two of you, and we're
18 really pleased that you could join us, and we look
19 forward to your contribution.
20 I want to thank everybody who has worked so
21 hard on the subcommittees and the three chairs of the
22 subcommittees, Dave Eherts, who is not here, who 17
1 chaired the 11-C committee; Eric Frumin, who chaired
2 the Transportation Industry Work Group; and Jonathan
3 Brock. Jon has done a tremendous job on the Best
4 Practice Committee. I think we'll be hearing a lot
5 more about that today.
6 This is also a nice opportunity for me,
7 though, to thank the staff of OSHA and the Solicitor's
8 Office, who have worked so hard on these whistleblower
9 issues, and because in the audience today we have so
10 many people from the national office and from our
11 regions who really spend, you know, all their time and
12 they are dedicated, committed, persevere on some very
13 tough issues and really make a big difference, and so,
14 I want to just express my gratitude to all of them, as
15 well, since they're in the room today. It's a nice
16 opportunity to do that.
17 So, I want to take a few minutes to just give
18 you an update on what OSHA has done in a couple of
19 different areas and, in particular, around
20 whistleblower protection, and then, obviously, I'm
21 happy to take your questions and comments, though I
22 won't be here for the whole meeting, but I'll also get 18
1 a full report from both our staff and from your
2 chairperson on discussions that went on today, rest
3 assured.
4 So, first I want to just discuss briefly with
5 you a report that we issued a month ago or so, in case
6 you hadn’t seen it.
7 It's called Adding Inequality to Injury: The
8 Costs of Failing to Protect Workers on the Job, and
9 that’s on our website, and I think it's very much
10 connected to the work that we do on whistleblower
11 protection and the connection it has to preventing
12 injuries and illnesses.
13 So, to put it in some context, what's often
14 forgotten about sort of the toll of workplace injuries
15 and illnesses in the United States is the Bureau of
16 Labor Statistics reports or estimates that there are 3
17 million injuries a year, more than 3 million serious
18 injuries a year in the American workplace, and we know
19 that’s an undercount, but employers record more than 3
20 million injuries a year, and we call them serious
21 meaning that they are beyond just first aid. That's a
22 very, very large number, and we take it for granted 19
1 that it's sort of acceptable that there are 3 million
2 or more injuries a year. We don’t think it's
3 acceptable at all.
4 We don’t have any statistics on the number of
5 illnesses that occur in American workplaces. Employers
6 record a small number of illnesses, but those are ones
7 that are quite obvious to them.
8 But we know that large numbers of people are
9 sick now based on exposures that occurred in the past,
10 from asbestos, from benzene, exposures that hopefully
11 are not occurring at all or not occurring very much in
12 workplaces today.
13 But we don’t really know much about workplace
14 illnesses.
15 But we do know that when workers are either
16 injured or made sick on the job, the biggest impact is
17 on them, and the systems that are supposed to take care
18 of them really are not doing very well.
19 We know from numerous studies that the cost
20 of those injuries primarily are borne by workers and
21 their families, and the estimates by a number of
22 different economists are sort of in the range of 60 20
1 percent or more of the costs are actually borne by the
2 workers themselves or their families.
3 Workers comp picks up a substantial portion,
4 maybe 20 percent, and the remainder is picked up by the
5 taxpayer through state programs and federal programs,
6 which is really a cost shift onto the American taxpayer
7 and endangers some of the important programs that the
8 government provides, like the Social Security
9 Disability Insurance Program, which, as many people
10 know, is facing significant financial challenges right
11 now, and part of the challenge they face is picking up
12 costs of injured workers that should be paid by workers
13 compensation.
14 So, essentially we're seeing two things.
15 Because of the way -- the experience of injured workers
16 and the fact that they, themselves, are picking up most
17 of the costs, essentially, for some employers, there is
18 much less incentive to abate hazards, because they
19 aren’t paying the true cost of the illnesses and the
20 injuries.
21 We know that, for many employers, they see
22 what the real costs are injuries and they do 21
1 everything, again, to abate those hazards and prevent
2 injuries from occurring, but far too many don’t do
3 that, because we wouldn’t be seeing 3 million or more
4 injuries a year if there was that -- the committed
5 approach to preventing injuries from occurring.
6 So, essentially you have a system that
7 essentially doesn’t incentivize employers to abate
8 hazards, because they're not picking up the true costs,
9 and you've got a cost shift to the taxpayer, who are
10 subsidizing unsafe employers.
11 So, we've issued this report, really, to
12 raise these issues and talk about the importance of
13 prevention.
14 The best way to address this problem, of
15 course, is to ensure that workers aren’t injured, that
16 they're not made sick, and we'd like to encourage that
17 conversation to take place in the United States today.
18 Certainly, protecting the voice of workers
19 who raise concerns is a part of that conversation, and
20 we're grateful for your work on that.
21 In focusing directly on the Whistleblower
22 Protection Program, just to recap, this is -- since the 22
1 current OSHA leadership arrived -- and you've met
2 Jordan Barab and Debbie Berkowitz here -- this is our
3 sixth year of being in OSHA leadership.
4 I think we've made significant progress in
5 building a more effective Whistleblower Protection
6 Program. We've worked very hard on increasing the
7 staff.
8 We've elevated the office to a directorate in
9 the national office, led by a senior executive, which I
10 think will make a very big difference to this.
11 We've developed our own budget line for the
12 Whistleblower Protection Program. Before that, it had
13 no specific budget line. We've made the program a
14 major priority in the Department of Labor.
15 We've also developed a much closer working
16 relationship with the Solicitor of Labor, because
17 everything we do is jointly with the Solicitor of
18 Labor, and we're grateful for Louise, who is actually
19 taking on more and more responsibilities in the
20 Solicitor's office and she's maintained this
21 involvement in this committee, as well, because her
22 input is always very important to this, and actively, 23
1 we collaborate on addressing whistleblower cases, no
2 matter the small size or the large size of the monetary
3 awards involved.
4 And I think, as a result of all this, the
5 whistleblower program is clearly getting stronger. We
6 face big challenges, though. The number of new
7 whistleblower retaliation cases filed with Federal OSHA
8 grows steadily every year.
9 In fiscal year 2014, we received 7,400 new
10 complaints and documented more than 1,000 new cases for
11 investigation.
12 So, even though we're receiving more cases
13 than ever, our investigative staff is working very hard
14 to help us keep pace.
15 In fiscal year '14, we completed 3,150 cases,
16 essentially just keeping up with the cases that are
17 coming in, awarding more than $35 million to
18 whistleblower complainants and reinstating 69 workers
19 through merit determinations and settlement agreements.
20 Now, in December 2013, we launched a new
21 online whistleblower complaint form, and that provides
22 workers with additional avenues for filing 24
1 whistleblower complaints. So, not surprisingly, the
2 online complaint form has proved extremely popular with
3 the public, and it's increased the number of complaints
4 that we've gotten.
5 From December 2013 through September 2014,
6 OSHA received approximately 3,000 online filed
7 complaints, over 40 percent of the new complaints
8 received during the fiscal year '14.
9 So far this fiscal year, from October 1st to
10 April 13th, we received an additional 1,800 online
11 complaints.
12 So, we will continue to get more complaints.
13 We don’t want to discourage workers from filing
14 complaints, and that will continue to be a challenge to
15 us, and we have to address that issue, but we certainly
16 don’t want to discourage workers from filing complaints
17 with us.
18 So, we've come a long way in the last six
19 years, but we know that we still have quite a bit of
20 work in front of us.
21 This is how we think about this.
22 We're focused on improving both the 25
1 efficiency and the quality of our investigation. We
2 realize we have to do both.
3 We need to get more complaints in, if they're
4 valid, and we have to deal with them quickly and
5 fairly.
6 Focusing on improving the investigative
7 process, we've emphasized an attentive caseload
8 management, we've eliminated burdensome paperwork
9 procedures, and we have restructured the regional
10 whistleblower programs to strengthen oversight of
11 investigative teams, and actually, the ARAs who are in
12 the room are spearheading that effort, and we're very
13 pleased that we have this new structure to make that
14 happen.
15 We're increasing the training and skill
16 levels of our investigators.
17 Now, because OSHA's improved investigatory
18 efficiency has allowed it to serve more whistleblower
19 parties, whistleblower complainants have received more
20 damages or been awarded more damages through merit
21 findings and settlement awards than before the backlog
22 reduction campaign began in fiscal year 2012. 26
1 From fiscal years 2012 through '14,
2 whistleblower complainants were awarded an average of
3 about $30 million per year in merit findings and
4 settlements, compared with an average of $14 million
5 per year in the preceding 3 fiscal years.
6 For example, in fiscal year '14,
7 whistleblower complainants were awarded about $36
8 million, more than double the $15 million that was
9 awarded to complainants in 2011, before we started this
10 campaign to catch up with the backlog.
11 More whistleblower complainants were also
12 reinstated through merit findings and settlements in
13 the past three years.
14 An average of 76 complainants were reinstated
15 each year from fiscal year '12 through '14, including a
16 record 86 reinstatements in fiscal year '13, while an
17 average of 63 complainants were reinstated each year
18 from fiscal year 2009 through '11.
19 We have also issued a higher number of merit
20 findings during the past 3 years, issuing an average of
21 62 merit findings per year in those last three years,
22 including a record 75 merit findings in fiscal year 27
1 '13, compared to an average of 50 merit findings each
2 year in the previous 3 years.
3 So, I've tried to make this very clear to our
4 entire staff across the country. Our goal is to
5 improve both efficiency and quality for all of our
6 whistleblower protection activities. We can't
7 sacrifice one for the other.
8 But we also understand that these cases are
9 not just numbers. Each one represents and directly
10 affects people's lives.
11 That’s why we are continuing to take steps to
12 ensure we have consistent and thorough investigations
13 throughout the country, and all of our assistant
14 regional administrators are in town here to both
15 observe this meeting and then we'll be meeting with
16 them to address issues of consistency and to make sure
17 everybody is on the same page and learn from each other
18 and some of the best practices that each of the regions
19 has developed.
20 We also have some updates in personnel.
21 As you've heard already, Mary Ann Garahan --
22 I chose Mary Ann Garahan to be the Director of the 28
1 Directorate for Whistleblower Protection Programs. I'm
2 extremely pleased that Mary Ann agreed to do this.
3 She is currently Regional Administrator for
4 Region II, Philadelphia, previously was in the national
5 office, has been a valuable member of the OSHA team for
6 25 years, and it think everybody will see she is quite
7 a skilled manager with extensive technical experience
8 in all of the OSHA programs.
9 She'll come back to Washington and begin her
10 new role as Director of the Directorate for
11 Whistleblower Protection Programs next month.
12 I am confident that Mary Ann will be an
13 effective leader in whistleblower protection and will
14 continue to build and strengthen this very important
15 program.
16 Thank you for agreeing to do this, Mary Ann.
17 I think you'll get a chance to spend some
18 time with her over the next day-and-a-half.
19 You also met very briefly Eric Harbin. He is
20 the Acting Director. He has come in from the Dallas
21 office, where he is Deputy Regional Administrator.
22 We're very grateful that Eric has spent several months 29
1 with us, helping to manage the program until Mary Ann
2 gets here.
3 And you've also met and we're very grateful
4 for the work of Anthony Rosa. Anthony Rosa is our
5 permanent Deputy Director of the Whistleblower
6 Protection Program, has made a huge difference since
7 coming.
8 I can't tell you -- the number of ways that
9 he's helped this program, I can't count. I mean, it's
10 really -- it's terrific.
11 I'm very grateful that you joined us, and
12 it's a pleasure to have you as part of our team here.
13 Now, I want to let you know that we'll be
14 seeking to fill six positions on this advisory panel,
15 as people's terms end and then start again. They’ll be
16 vacant in December, December 1st, and we issued a
17 Federal Register notice on March 17th with details.
18 So, nominations, including people who want to
19 be re-nominated and other nominations have to be
20 submitted to OSHA by May 18th of this year.
21 So, please let us know your thoughts, and
22 other people we'd like to encourage to apply, as well, 30
1 or to be nominated.
2 So, I referred to earlier -- and I'll talk a
3 little bit about this -- we're currently expanding all
4 of our regional programs -- we're expanding into our
5 regional programs what we think is a highly successful
6 management structure where we have a dedicated
7 assistant regional administrator, or ARA, who would
8 oversee each regional whistleblower program, and this
9 is essentially a promotion, a higher-level position in
10 every regional office to supervise all of the
11 whistleblower activities.
12 The ARA either will or already does report to
13 our regional leadership, so that it elevates the
14 program in the field in much the same way we've
15 elevated the whistleblower program in the national
16 office.
17 This new position, the ARA, allows for direct
18 caseload management and oversight of whistleblower
19 investigations by subject matter experts, which we
20 believe will result in more efficient and effective
21 investigations under all the statutes that we cover.
22 Now, the regions that have already 31
1 implemented this management structure tell us that both
2 regional supervisors and investigators benefit under
3 this new plan.
4 We've been working for more than a year to
5 overhaul and expand our basic educational offerings,
6 our training offerings for whistleblower investigators,
7 and we're current designing and developing new
8 curriculum for advanced training courses.
9 These courses will help build investigator
10 skills as they gain more experience and grow during
11 their careers.
12 In addition to these new courses, which will
13 be rolled out next year -- Eric Harbin is going to fill
14 you in on more of these -- we also developed some
15 webinars which will educate our staff on the new
16 statutes and regulations, along with other topics that
17 we really need to address.
18 Recently, for example, the directorate issued
19 a webinars focusing on the Fairfax memo, which is the
20 OSHA policy on incentive programs. That’s a very
21 important issue to the field. We just did a webinar
22 specifically on that. 32
1 That webinar is actually the first step in
2 responding to the recommendations from the 11-C work
3 group of your advisory committee that we received in
4 September 2014 on educational practices for our staff.
5 We are also continuing to improve our work
6 with our partner agencies and the whistleblower
7 provisions we enforce, and that's why I'm very grateful
8 we have representatives from a couple of different
9 Federal agencies on this panel.
10 Currently, we're reviewing a memorandum of
11 understanding with the Federal Aviation Administration.
12 This MOU will facilitate coordination and
13 cooperation concerning the protection of employees who
14 provide air safety information under the Wendell H.
15 Ford Aviation Investment and Reform Act for the 21st
16 Century, which we call the Air 21 act.
17 So, we want to do this more with all of our
18 Federal partners to make sure we work closely with
19 them.
20 We have to do that because the increasing
21 number of whistleblower cases filed each year under all
22 these different statutes requires this close 33
1 coordination.
2 And this new legislation, not surprisingly,
3 is bringing new cases.
4 In fiscal year '11, there were 6 cases filed
5 under the Consumer Financial Protection Act and 17
6 under the FDA Food Safety Modernization Act.
7 Three years later, in 2014, we have 48 cases
8 under the Consumer Financial Protection Act and 50
9 cases under the FDA Food Safety Modernization Act.
10 Needless to say, we expect more and more cases to come
11 under these acts.
12 Just last year, we received 10 cases under a
13 new piece of legislation, MAP 21, Moving Ahead for
14 Progress in the 21st Century.
15 That statute was just passed in 2012, and so,
16 the cases are just starting to come in, and now under
17 the Seaman's Protection Act, we're receiving new cases.
18 So, we always have some new challenges to
19 take on, to learn more and to take on cases and to
20 reach out to other agencies to work more closely with
21 them.
22 We're asking our partner agencies to add the 34
1 link to our website, www.whistleblowers.gov, to their
2 respective websites. In turn, we're going to make sure
3 that the OSHA website provides a hyperlink back to each
4 partner agency.
5 We believe this will improve customer service
6 and help demonstrate a strong working relationship with
7 our Federal agency partners.
8 Now, as communication with these partners is
9 enhanced, we'll be able to assure that an effective
10 process exists for sharing complaints and investigating
11 information so that all the concerns raised by
12 complainants are fully addressed.
13 We're exploring joint outreach opportunities
14 with our Federal partners and we’re assessing internal
15 training needs so all of our customers are better
16 served.
17 Another approach we're looking into -- we're
18 moving forward with revising our Alternative Dispute
19 Resolution Pilot Program, which ran through fiscal year
20 '13, and it showed us that early resolution could be
21 very effective in providing a viable alternative to the
22 lengthy investigative process. 35
1 The early resolution process demonstrates
2 that adding staff dedicated to the coordination and
3 facilitation of early settlement negotiation provides a
4 highly desired service to the program's customers.
5 So, in light of the results of this pilot,
6 we're expanding the availability of the early
7 resolution process to all the regions, and we've
8 developed written instructions to establish the
9 policies and procedures that apply to early resolution.
10 Something I talked about, I think, in our
11 last meeting in September, I'm very happy to announce
12 today that we're issuing jointly with OSHA and the
13 Office for the Solicitor of Labor -- we have a memo
14 clarifying the agency's position regarding
15 investigative standards for OSHA's whistleblower
16 investigations.
17 The standard that applies to our
18 whistleblower investigations is whether OSHA has
19 reasonable cause to believe a violation has occurred.
20 Because OSHA makes its reasonable cause
21 determinations prior to a hearing, the reasonable cause
22 standard is somewhat lower than the preponderance of 36
1 evidence standard that applies following a hearing, and
2 we've scheduled a presentation later today to explain
3 this clarification in greater detail and answer your
4 questions.
5 You are very fortunate that Megan Guenther,
6 who is with the Solicitor of Labor, who has worked very
7 hard on this, will be presenting this in more detail,
8 and I'm very pleased you can do that.
9 We've also made improvements with our 11-C
10 appeals program. Over the last year, the directorate
11 eliminated its backlog of pending reviews and has
12 dramatically reduced the time taken to complete our
13 reviews.
14 Complex cases are referred to our solicitors
15 for further review and legal analysis, and if and when
16 additional investigative work is needed, the case is
17 remanded back to the field for further investigation.
18 So, we're working on this. We're developing
19 ways to better track this for the public, and we'll
20 keep you posted, but I really wanted to thank the
21 Solicitor's office and everybody in that for their work
22 on both these issues. 37
1 It's really been a great collaboration, and
2 so, I'm very pleased with how it's going.
3 Now, we've also been working on the
4 comprehensive written outreach plan for the Directorate
5 of Whistleblower Protection Program, and we've also
6 developed a bunch of new materials which will be part
7 of that outreach.
8 Fourteen fact sheets are currently available
9 on our website, in both English and Spanish, and more
10 are on the way.
11 We've developed what we call a Quick Card on
12 11-C, both English and Spanish, to quickly provide
13 program information to the public, and we've redesigned
14 our website, whistleblowers.gov, to enhance
15 navigability and user-friendliness.
16 So, as you can see, the whistleblower staff
17 and the solicitors have been very busy. We've really
18 made protecting workers from retaliation for exercising
19 their rights a major priority for OSHA, and we're
20 grateful everybody has pitched in to make this happen.
21 The department's FY '16 budget request --
22 actually, the President's FY '16 budget request for 38
1 whistleblower programs reflects our commitment to
2 continuing to build the program.
3 The $22.6 million request would support a
4 total of 157 full-time employees. That’s an increase
5 of 22 positions over our current FTE level of 135.
6 Now, as everybody in this room knows, we
7 cover a range of types of workplaces, and we enforce
8 whistleblower provisions for 22 different statutes.
9 So, I want to just share with you some of our recent
10 successes.
11 As many of you know, we've been dealing with
12 several 11-C investigations involving AT&T.
13 In multiple regions around the country, we've
14 filed District Court cases against subsidiaries of AT&T
15 on behalf of workers who suffered discipline after
16 reporting workplace injuries.
17 In each instance, the company alleged that
18 the employee violated a corporate workplace safety
19 standard, but OSHA's investigation concluded that the
20 safety standards were being used as a pretext for
21 disciplining workers who reported injuries.
22 Our efforts are making a difference. 39
1 In Region V -- that’s the Chicago region,
2 covering Ohio west to Illinois -- after we filed in
3 District Court, the company made all of the workers
4 whole. They removed the discipline procedures and
5 compensated the workers fully.
6 Now, this is still in litigation, and as it
7 develops, we will keep everybody apprised.
8 In October 2014, the Kansas City Regional
9 Office found that the Burlington Northern Santa Fe
10 Railroad, BNSF, violated the Federal Railroad Safety
11 Act when it retaliated against an apprentice
12 electrician after he reported a shoulder injury.
13 The company terminated the employee after he
14 suffered the injury, which required him to be
15 transported to an emergency room and medically
16 restricted from returning to work.
17 OSHA ordered the company to pay the
18 apprentice electrician $225,000, including $150,000 in
19 punitive damage, remove disciplinary information from
20 the employee’s personnel records, and provide
21 whistleblower rights information to all of its
22 employees. 40
1 In December 2014, our Boston Regional Office
2 found the Metro North Railroad violated the Federal
3 Railroad Safety Act when it retaliated against a coach
4 cleaner after he reported a knee injury.
5 While driving the injured employee to the
6 hospital, a Metro North supervisor intimidated the
7 worker and threatened that reporting the injury would
8 kill his chances for career advancement in the company.
9 Region I ordered Metro North to pay the
10 employee a total of $250,000 in punitive damage.
11 That’s the highest allowed, and I don’t believe we had
12 ever done that amount previously, because of the nature
13 of this particular event, plus $10,000 in compensatory
14 damage and to cover his attorneys’ fees.
15 Jeff Erskine and Mike Mabee from Hartford
16 worked very hard on this case, and I'm very grateful
17 for their work on this. So, thank you both.
18 Just a few weeks ago, in February, we won a
19 Section 11-C case in court, in Seattle, against the
20 United States Postal Service, who had retaliated
21 against an employee who helped a coworker file an OSHA
22 complaint. 41
1 The District Court judge reinstated the
2 employee to a management level position, awarded him
3 almost $230,000 in compensatory damages and expunged
4 his disciplinary record.
5 The judge found the Postal Service to be so
6 hostile to OSHA and its employees' protected activities
7 that the court permanently enjoined the Postal
8 Service's Seattle facilities from violating 11-C of the
9 OSHA act.
10 This month, our New York Regional Office
11 found that a Bronx hair salon violated Section 11-C of
12 the OSHA act when it retaliated against an employee who
13 warned her coworkers about formaldehyde in hair
14 straightening products and potential respiratory damage
15 from exposure.
16 The salon was later inspected and cited for
17 lack of a hazard communication program and improperly
18 training its employees. We are now in court pursuing
19 11-C charges in District Court in New York.
20 And we also won an 11-C case against a Boston
21 dentist who had retaliated against an employee who
22 helped a coworker file an OSHA complaint regarding 42
1 needle stick hazards. The District Court judge ordered
2 the dentist and his office to pay the worker more than
3 $50,000 in back wages and $333,000 in compensatory
4 damage.
5 So, again, to the OSHA regional staff who
6 worked on all these cases, thank you so much for the
7 work that you've done on them.
8 But I have to tell you, we still face huge
9 challenges. Just last week, in Alabama, we had to go
10 to court to obtain a temporary restraining order, and
11 we did obtain it from a Federal judge, against the Lear
12 Corporation, which is an auto parts manufacturer.
13 A worker there complained about hazardous
14 conditions, and what did Lear do? They fired that
15 worker and they went to court and sued that worker.
16 We were outraged. We recently had completed
17 an investigation at that site. We issued monetary
18 penalties against Lear because of the hazards there,
19 and then when the worker raised concerns, fired that
20 worker.
21 There's a hearing on April 29th in court, and
22 we expect to be in court to protect that worker's right 43
1 to raise concerns, but this case underscores the need
2 for a new attitude on the part of some employers, and
3 it really demonstrates the importance of the work of
4 this committee in helping us reach out to employers and
5 talking about essentially the way you address issues
6 raised by employees around safety and health concerns
7 or other concerns covered by the legislation that we
8 are given the responsibility to investigate.
9 So, we need your help, and that’s why you're
10 here and we're so grateful for what you do.
11 I want to especially talk a little bit about
12 the work of the Best Practices Work Group, and I know
13 you've worked hard and I've seen many drafts of what
14 you've done, drafting and proposing a set of
15 recommended practices to give to this committee.
16 I look forward to hearing the committee's
17 discussion on these practices and considering these
18 recommendations and how we can get them out.
19 OSHA is committed to provide and showcasing
20 these best practices that encourage employers to
21 establish effective anti-retaliation reporting programs
22 in their workplaces. 44
1 I know there are very good programs out
2 there. There are many employers who understand exactly
3 how to do this well, and we really have to learn from
4 them and put these best practices out there.
5 With your assistance in collection -- we'll
6 call it for the moment -- recommended practices and
7 through your recommendations to us, we can collectively
8 effect a positive corporate culture change that
9 encourages employees to report their concerns without
10 fear of retaliation while realizing benefits for
11 employers who establish these programs in their
12 workplaces.
13 So, to this committee as a whole, to all of
14 you, whether or not you are on that committee, I would
15 appreciate your brainstorming and advice on how OSHA
16 can best reach out to workers and to employers and to
17 educate them about all these issues, about
18 whistleblower rights, the benefits of these rights, and
19 protecting these rights for employers, and how we can
20 all work together to protect these rights.
21 I think this will really play a key role as
22 we implement our national outreach plan. 45
1 I know we've had three working groups. I
2 appreciate your work on all of them. I appreciate your
3 passion, your dedication, the time that you spent.
4 This committee really does work hard, and we
5 recognize that, and I know you get no pay for this, you
6 get no great honor except to know that you've really
7 made a very important contribution to helping
8 workplaces function better, and we're grateful for it.
9 We appreciate -- we're appreciative of your
10 interest in promoting worker safety and health and the
11 ability of workers to voice safety and health concerns
12 without fear of retaliation.
13 The bottom line is this: Workers have to be
14 able to report hazards without fear of reprisal. No
15 one benefits if workers are silenced for sounding an
16 alarm when they see a problem that could injure,
17 sicken, or kill someone or impact their financial
18 future.
19 The country needs to make sure these workers
20 are protected. All this legislation says that, and we
21 are the way to implement that.
22 We all pay a price when workers are silent. 46
1 So, again, thank you so much for coming to
2 Washington to do the work with us, and I'm happy to
3 take your questions or comments, and we'll take it from
4 there.
5 CHAIR SPIELER: So, before we open it up for
6 questions and comments, I just want to say that, from
7 the time, Dr. Michaels, that you contacted me and asked
8 me if I would chair this committee, until now, there
9 have been enormous strides made by OSHA.
10 I don’t think any of us thinks that we're
11 there yet, but just the fact that there's an ARA
12 structure out in the regions now and that people are
13 here and focused on this issue -- it is a sea change
14 from the way OSHA was previously organized around these
15 issues, and I think it really will make a difference as
16 we go forward, and I also didn't say in my opening,
17 which I tried really hard to keep brief, that we have
18 been staffed incredibly well by the people in DWPP and
19 by Louise from SOL, and I want to thank Louise and
20 Anthony, who has been our -- who is our contact person,
21 and Rob and Megan and the other folks in DWPP for the
22 work that you do. 47
1 I sometimes think that advisory committees
2 are just one more thing for Federal employees, and I
3 know that there are lots of rules to navigate when you
4 have a Federal advisory committee, but I do think that
5 this is a committee that is very committed to trying to
6 make a difference, and as we go forward, we would also
7 appreciate any ideas that you have for issues that we
8 should be thinking about as a committee.
9 And with that, I'll open it up for
10 questions/comments from the rest of the committee.
11 Nancy.
12 MS. LESSIN: Dr. Michaels, I know that OSHA
13 put out a supplemental notice about the proposed rule
14 of improving tracking of workplace injuries and
15 illnesses, as well as that original rule.
16 Is there a timetable by which something might
17 happen here or we might see what the fruits of those
18 efforts are?
19 DR. MICHAELS: I've been at OSHA long enough
20 never to say I know exactly when regulations will come
21 out, but I think we're on target to complete our review
22 of it, our work on it, within the next month or two, 48
1 and get it over to OIRA for their work. So, I think
2 we'll see it within a few months.
3 MS. LESSIN: Thank you.
4 CHAIR SPIELER: Just for those of you who
5 aren’t quite focused on the inside baseball exchange
6 there, what Nancy asked about was the record keeping
7 rule and the rolling in of some of the issues around
8 suppression of reporting into the record keeping
9 requirements so that when companies have policies and
10 practices that suppress record keeping, it would also
11 be a violation of the record keeping rule, and the
12 proposal also includes a component so that if someone
13 were the subject of retaliation, as a component of
14 that, it would also count potentially as a violation of
15 the record keeping rule.
16 I know that OSHA has been considering that,
17 and that is an issue that the advisory committee
18 addressed in our recommendations.
19 So, it is something that we have considerable
20 interest in, in view of the fact that it does touch
21 that place where the OSHA general enforcement issues
22 come against the OSHA retaliation issues, which are the 49
1 primary focus of this committee.
2 Other questions/comments for David?
3 Eric.
4 MR. FRUMIN: I want to second Emily Spieler's
5 comments about the progress that’s been made in the
6 last few years on the whole whistleblower program,
7 including the reforms at the regional level, and so,
8 since the ARA's and other folks from the regions are in
9 the room -- some of you I've met in the past; others,
10 you know, maybe I'll meet now -- so, thanks for what
11 you do every day.
12 You have a very hard row to hoe, and it means
13 a lot when workers can believe that the assurances of
14 protections that compliance officers give them during
15 inspections, that those are meaningful, and if you
16 weren't doing what you're doing, there would be no
17 prayer that that would ever happen.
18 Having said that, there are many times when
19 it's not a meaningful protection, for any number of
20 reasons, the worst, of course, of which is the statute
21 itself, and this committee has weighed in on the need
22 to reform the statute and bring 11-C protections into 50
1 the modern era so that workers don’t have to languish
2 in the legal purgatory of an 11-C complaint for months
3 and months or years waiting for the wheels of justice
4 to grind on.
5 I want to just take this moment to thank the
6 Solicitor's office and OSHA together for the work that
7 was done recently in Region IV, in the south, and I
8 appreciate the participation of people from Region IV
9 here today, because you have a particularly difficult
10 task.
11 It's a part of the country where workers have
12 few rights that employers are bound to respect, at
13 least in practice, and this recent incident that Dr.
14 Michaels mentioned with the Lear Corporation speaks
15 volumes to the innovation that’s going to be necessary
16 until we can see the reforms in 11-C that will someday
17 give workers the hope that that right will be
18 meaningfully vindicated.
19 The fact that this company treated workers
20 this way in the midst of an OSHA investigation is
21 really astonishing, and you have to wonder, what were
22 those lawyers thinking? 51
1 Did they really expect an objective party to
2 accept a slap suit against a complainant in the middle
3 of an OSHA investigation?
4 I mean, it's just kind of hard to fathom how
5 they would think that that was legit, and I was so
6 heartened to see the work of the Solicitor's office and
7 the OSHA folks in taking that action very, very
8 seriously.
9 We saw you do that in the mining industry a
10 year or two ago, and this kind of message needs to go
11 out loudly throughout the land.
12 I wish penalties could have accompanied the
13 judge's order, but maybe they're dumb enough to get
14 into contempt.
15 So, thank you very much for the work that you
16 do and for finding -- looking for practical ways to
17 send that kind of message to employers for whom there
18 is simply no line in the sand.
19 CHAIR SPIELER: Rina.
20 MS. TUCKER-HARRIS: I was just curious as to
21 which city that was in Alabama.
22 DR. MICHAELS: Selma. 52
1 There are some news reports from the local
2 newspaper. Maybe we'll make a copy and circulate --
3 and give you some background on what's going on.
4 CHAIR SPIELER: Other questions or comments.
5 DR. MICHAELS: I was hoping we'd actually be
6 able to get a picture together. This is a really
7 august group, and we have a photographer here.
8 So, we can all stand up there, take a -- if
9 that's okay with you. This is a good group to
10 commemorate.
11 CHAIR SPIELER: Okay.
12 DR. MICHAELS: I'd like to do that.
13 (Off the record for photo shoot.)
14 CHAIR SPIELER: Next on our agenda, we're
15 going to have a DWPP update and report from Eric
16 Harbin, who is currently the Acting Director. I
17 suspect at our next meeting we will hear from our
18 permanent director who will be coming in, as you heard,
19 next month.
20 Eric, why don't you go ahead?
21 DWPP UPDATE
22 MR. HARBIN: Okay. Thank you very much, Ms. 53
1 Spieler. It's a pleasure to be here.
2 As mentioned before, my name is Eric Harbin,
3 and normally I'm the Deputy Regional Administrator in
4 Dallas, Texas, but for the past seven weeks, I've been
5 fortunate enough to be here with the Directorate of
6 Whistleblower Protection Program and it's been quite an
7 honor.
8 But one of the things I know, as Dr. Michaels
9 started, he really thanked everyone here, but one thing
10 I would actually like to do is thank Dr. Michaels for
11 his leadership not only on safety and health issues but
12 also making sure that workers have the right to
13 exercise their whistleblower protection rights.
14 So, that’s something I'm very proud of here,
15 and I know everyone here with me, and they support Dr.
16 Michaels in that.
17 I also wanted to let you know a little bit
18 more about Ms. Garahan, Mary Ann Garahan, who was
19 announced as the permanent director for the Director of
20 Whistleblower Protection Programs.
21 As you know, she's been nearly three years
22 the regional administrator in Philadelphia, Region III 54
1 for OSHA, and during that time she's got, actually, a
2 very remarkable record.
3 They have a little over 13 million covered
4 workers in their Region III, and during her time there,
5 they’ve led to 125 successful whistleblower settlements
6 in favor of the complainants, that being the workers,
7 and it put 19 of the employees back to work and
8 recovered over $14 million for the workers. That is a
9 remarkable sum.
10 During Mary Ann's tenure as a regional
11 administrator, she also oversaw major enforcement cases
12 and she expanded OSHA's outreach activities and the
13 protection of vulnerable workers in her region.
14 Before serving as regional administrator,
15 Mary Ann was here in the national office for many
16 years.
17 Her last position was as the acting director
18 of the Directorate of Technical Support and Emergency
19 Management, and that time I actually spent a stint with
20 her as the acting deputy for her, so I got to work with
21 her very closely.
22 I'm very thankful for that. 55
1 I also would like to thank Emily Spieler for
2 being the Whistleblower -- WPAC -- as well as the other
3 work groups, Dave Eherts, Jon Brock, and Eric Frumin.
4 Also, as we introduced ourselves earlier, I
5 wanted to thank the DWPP staff and recognize them for
6 all they’ve done. Also in the audience here, we have
7 the ARA's, the assistant regional administrators, who
8 are a very hardworking group.
9 In particular, I also wanted to recognize a
10 few people that each of you have been able to work
11 closely with, and that’s your WPAC points of contact
12 starting with Anthony Rosa, your designated Federal
13 official.
14 Christine Stewart, who is actually here
15 helping on loan from Region VII in Kansas City. She's
16 the Acting Division Director in DWPP.
17 Meghan Smith, who is your chief point of
18 contact, as well Rob Swick and Marisa Johnson.
19 I will be here through the end of this week,
20 and I'll just let you know that if there's anything I
21 can do to make your time here any better, please let me
22 know, and also, please feel free to contact me once the 56
1 meeting is convened.
2 And of course, as I mentioned, Anthony Rosa
3 will remain the designated Federal official, and please
4 also let Meghan Smith know if you have any issues.
5 She's currently on loan from DWPP to the
6 Office of the Executive Secretary, but we're looking
7 forward to the day when she comes back to DWPP.
8 I wanted to mention to you -- give you a
9 field update.
10 As much as the Directorate of Whistleblower
11 Protection Programs does, the bulk of the work is
12 actually done in the field, in one of OSHA's 10
13 regions.
14 As Dr. Michaels mentioned earlier, we have
15 several pilot programs that were used.
16 There are a couple that were extremely
17 successful, and the agency as a whole has decided to
18 implement those programs, one being the assistant
19 regional administrator for Whistleblower Protection
20 Programs.
21 It was filled in Regions V and IV, had
22 overwhelmingly positive results, and as Dr. Michaels 57
1 mentioned, we have expanded to all regions, and all of
2 the regions have either filled the position or are in
3 the process of filling the position for the assistant
4 regional administrator.
5 One of the key things it really does is, just
6 like -- in the regional structure, typically, up until
7 now, you had three assistant regional administrators,
8 one for enforcement programs, one for cooperative and
9 state programs, and one for administrative programs.
10 What this does is this elevates the level of
11 the whistleblower program in each of the 10 regions.
12 So, now we actually have four assistant
13 regional administrators in each of the regions. We're
14 in the process of filling all four positions.
15 What it does is it lowers the supervisor to
16 investigator ratio. I'll give you an example.
17 In Region VI, where I'm from, in Dallas,
18 previously we had one regional supervisory investigator
19 supervising 11 investigators and 1 admin staff, and now
20 we actually have reduced -- it made it difficult to
21 manage all of the investigators, but now we've actually
22 reduced the ratio of supervisors to investigators. 58
1 It's now in the range of five to one. It makes it much
2 more manageable.
3 It provides subject matter expertise, and it
4 actually copies what is in place in the Directorate of
5 Enforcement Programs and throughout the regions.
6 So, another thing that was piloted and we are
7 actually continuing it, as well, is the Alternative
8 Dispute Resolution Initiative. Some of you may be
9 aware that it was piloted in Regions V and IX. It was
10 very successful. It was overwhelmingly successful.
11 We have decided to expand that. This will
12 call, typically, for a new position, an alternative
13 dispute resolution coordinator.
14 Currently, DWPP is in the process of getting
15 through the directive to help give guidance to the
16 fields, to each of the 10 regions, on how to utilize
17 the alternative dispute resolution position.
18 Leading up to this, we worked with the
19 Federal mediation and conciliation services to develop
20 some training for the ADR position, and with the help
21 of the FMCS, OSHA now has the training materials in
22 place that will allow us to do our own in-house 59
1 training for the ADR coordinators.
2 With regards to training, we also are working
3 to establish a parallel whistleblower training track at
4 the OSHA Training Institute.
5 We currently have what we call a TED in place
6 for our safety and health people, and soon we'll have
7 it in place for our whistleblower investigators.
8 We're working to explore new avenues for
9 providing additional Federal statute and special topic
10 training.
11 As mentioned previously, Anthony Rosa gave a
12 WebEx a few weeks ago on the incentives program
13 regarding the Fairfax memo, and this training will be
14 supplied on demand through our learning link.
15 To further ensure that we are conducting
16 quality investigations, we are constantly improving our
17 database system.
18 By refining our data collection and
19 reporting, we're better able to discover, analyze, and
20 address trends occurring both in our investigations and
21 in various industries.
22 As you came into the meeting today, you 60
1 received a two-page sheet with investigation data for
2 each of the regional programs and the program as a
3 whole, and I'll hold mine up to display it.]
4 If yours is printed in color, there will be a
5 yellow highlight. It's this two-page document.
6 What I wanted to do is take a minute to
7 explain it to you.
8 So, the data on the summary sheet is derived
9 from the first two pages of OSHA's Investigative Data
10 Report, which is a standard report that the
11 Whistleblower Protection Programs use to track
12 whistleblower data trends.
13 Page 1 of the summary sheet provides basic
14 caseload monitoring measures, including the number of
15 cases received and completed during a given timeframe,
16 as well as a number of cases pending at the end of the
17 timeframe.
18 So, the first three columns provide data on
19 the cases that were completed during fiscal year 2014.
20 You have total cases completed, and it's broken down by
21 region as you go from the top to the bottom, Regions I
22 through X, and then also a total, a summary at the 61
1 bottom.
2 Percent of the cases that were completed
3 within 90 days -- and again, it's -- as you move from
4 the top to the bottom, it breaks it down by region, and
5 the average days to complete the cases per region.
6 So, the column in the middle, new cases
7 received, shows the total number of cases received and
8 docketed for an investigation during the same time
9 period, and again, it's by region.
10 This does not include complaints that were
11 filed with the agency but were screened out because
12 they were untimely or were not prima facie cases, and
13 again, this is the new cases received.
14 And then the three columns to the right show
15 the data on the cases that were pending with the agency
16 at the end of the fiscal year, September 30, 2014,
17 So, it has the pending cases at the end of
18 the fiscal year, the percent of pending cases over 90
19 days, and the average days pending for the cases that
20 were pending at the end of the fiscal year.
21 Page 2 of the summary sheet provides data on
22 the determinations that complainants received in the 62
1 cases that were closed during the time period.
2 So, you know that OSHA investigations can end
3 in one of five ways:
4 OSHA dismisses the case, issues a merit
5 finding, a complainant can withdraw their complaint, or
6 the complainant kicks out of the OSHA process by filing
7 a complaint in District Court, or the parties resolve
8 their dispute through a settlement.
9 To break it down a little further, OSHA
10 breaks the settlements into two categories: settled,
11 which OSHA is a party to the settling of the case, or
12 settled other, which refers to a private settlement to
13 which OSHA was not a party.
14 OSHA calls these six categories of case
15 resolutions determinations.
16 In the second page of the summary sheet, it
17 shows the number of determinations that were issued to
18 complaints under the six determination types, and
19 again, as I mentioned, it's broken down by region.
20 One thing I want to point out, when you
21 compare the total number of determinations issued in
22 the fiscal year to the number of cases completed on the 63
1 first page, you'll see the determinations total is
2 larger, and this is because determinations counts the
3 resolution received by each individual complainant,
4 while the cases completed measure counts the case
5 docket numbers that were closed during the time period.
6 Because OSHA occasionally lists more than one
7 complainant on the same case number, there will be more
8 complainant determinations than there will be case
9 numbers closed.
10 Next to each total number of determinations,
11 the table shows the percentage of total determinations
12 issued that each determination type accounted for.
13 For example, the 809 total merits
14 determinations issued in the fiscal year 2014 report
15 accounts for 25 percent of all determinations.
16 On the right-hand side of the table, two
17 columns provide data on the remedies received by
18 complainants in the merit determinations, settlements
19 and merit findings that were issued during the
20 timeframe.
21 The damages column shows total monetary
22 damages provided to complainants in merit findings or 64
1 settlement agreements during the timeframe, and then
2 the reinstated column shows the number of complainants
3 that were reinstated.
4 Now, on Friday, each of you received an email
5 from the designated Federal official, Anthony Rosa, and
6 it was a four-page document, and I think we're in the
7 process of getting printed copies for you if you don’t
8 already have it.
9 Is that correct?
10 MR. ROSA: That is correct.
11 MR. HARBIN: A lot of the information is very
12 similar, but there's a couple of things I wanted to
13 point out.
14 There's one row that’s labeled EPA. This
15 refers to all six of the environmental statutes that
16 OSHA enforces. I think you may still only have it in
17 an electronic copy at the moment.
18 And likewise, on the second page, it
19 corresponds to the second page of the summary, which I
20 just covered briefly with you.
21 And the third and fourth pages provide data
22 on which type of protected activity was alleged by 65
1 complainants who received a determination during the
2 time period, and this goes through each of the statutes
3 that OSHA covers.
4 And then page 4 expresses the totals listed
5 on page 3 in terms of percentages. Page 3 will be just
6 numbers, raw numbers of complainants or the particular
7 statute that was referenced, and then page 4 breaks it
8 down into percentages.
9 One of the things Dr. Michaels referenced
10 earlier was the DWPP administrative review forum. It
11 was called a DWPP review or appeals process.
12 One of the things that DWPP has done is they
13 have meetings -- we have -- the administrative forum
14 meetings have been a success.
15 At these meetings, staff members discuss
16 cases that may need more investigation or might need to
17 go to the full Administrative Review Committee.
18 The full committee consists of members from
19 DWPP and the national Solicitor's office.
20 Through these discussions, DWPP has been able
21 to identify areas for improvement in OSHA's 11-C
22 investigations and have meaningful discussions on 66
1 policy issues.
2 One thing I just really wanted to make clear
3 for all of you is this is not a rubberstamp process.
4 We have actually sent cases back to the field for
5 further clarification or investigation.
6 As Dr. Michaels mentioned, we have posted
7 online, back in December of 2013, the online
8 whistleblower complaint form. We have received over
9 3,000 online filed complaints during FY 2014, which is
10 a remarkable number.
11 Dr. Michaels mentioned our Spanish language
12 web page and updated fact sheets. We're also working
13 to make information more accessible to the public.
14 About two weeks ago, the Spanish language
15 whistleblower web page was launched.
16 We're also in the process of issuing mini-
17 fact sheets on each of our statutes and updating our
18 older fact sheets.
19 Last week, for example, we issued fact sheets
20 on the Clean Air Act, the Federal Water Pollution Act,
21 and the Safe Drinking Water Act. About a month prior,
22 we issued a fact sheet on the Seaman's Protection Act. 67
1 DWPP has worked with OSHA's Director of
2 Enforcement Programs to draft and publish a bulletin
3 regarding whistleblower rights and responsibilities for
4 the agency's temporary worker initiative.
5 The bulletins were issued under the
6 initiative outlining how joint employers share
7 responsibilities in protecting the safety and health of
8 their workers.
9 The bulletin was publish in March and is
10 posted on OSHA's temporary worker web page, and a copy
11 of that bulletin is in your package.
12 The Directorate of Whistleblower Protection
13 Programs is responsible for promulgating regulations
14 specifying the procedures for the handling of
15 retaliation complaints filed under the 22 statutes OSHA
16 administers.
17 Since the September 2014 meeting, OSHA has
18 published a final rule and continued work on several
19 other whistleblower rulemakings.
20 On March 5th of 2015, OSHA published a final
21 SOX rule.
22 In addition, the agency is continuing its 68
1 work on final whistleblower regulations under several
2 other statutes, responding to public comments received
3 on previously published interim final rules, including
4 the Food Safety Modernization Act, the Affordable Care
5 Act, the Seaman's Protection Act, the Consumer
6 Financial Protection Act, the National Transit System
7 Security Act, and the Federal Railroad Safety Act.
8 Finally, the agency is continuing its work on
9 an interim rule for the Moving Ahead, or MAP 21 Act.
10 We continue to strengthen our interagency
11 relations. Since so much of our work and statutes
12 address non-OSHA issues, it's critical that we
13 strengthen interagency relationships.
14 We've begun to meet regularly with our
15 various partner agencies. Last month, for example, we
16 met with the FAA to ensure smooth coordination in the
17 handling of whistleblower complaints between our agency
18 and theirs.
19 Our whistleblower investigations manual
20 continues to be an item that we've worked hard to
21 improve on. We continue to update chapters to make it
22 more consistent for our investigators. 69
1 As Dr. Michaels mentioned, around 11:00
2 o'clock today, we issued -- OSHA and the Solicitor of
3 Labor drafted a new policy memo that clarified that the
4 standard that applies to OSHA's whistleblower
5 investigations is whether OSHA has reasonable cause to
6 believe a violation occurred.
7 In other words, OSHA's policy is to issue
8 merit findings in whistleblower cases that provide for
9 ALJ hearings when it has a reasonable cause to believe
10 that a violation occurred, which is a lower standard
11 that the preponderance of the evidence standard that
12 applies at a hearing before an administrative law
13 judge.
14 In cases under Section 11-C, OSHA should be
15 consulting with the Solicitor of Labor regarding
16 whether a case is suitable for litigation no later than
17 when we, OSHA, recognize that there is a reasonable
18 cause to believe that a violation occurred.
19 As mentioned previously, Megan Guenther from
20 the Solicitor's office will be presenting that this
21 afternoon.
22 Now, during the last few meetings of the 70
1 Whistleblower Protection Advisory Committee, there were
2 some recommendations that came from WPAC.
3 One of those recommendations was that OSHA
4 develop and offer statute-specific periodic training to
5 transportation and other industries subject to
6 whistleblower laws.
7 In response to that, OSHA is actively engaged
8 in a nationwide outreach plan which will include fact
9 sheets, wallet cards, and other information and
10 materials for all industries under its jurisdiction,
11 including the transportation industry.
12 OSHA also looks forward to WPAC's Best
13 Practices Work Group recommendations regarding
14 recommended practices for employers, which will be
15 tomorrow.
16 A second recommendation from WPAC was
17 regarding punitive damages, that OSHA should work with
18 the Office of the Solicitor to achieve better
19 coordination between OSHA investigators and the Office
20 of the Solicitor regarding the appropriateness of
21 punitive damages in particular cases.
22 And in response to that, I wanted to let you 71
1 know that OSHA enjoys an excellent working relationship
2 with the Office of the Solicitor and continually works
3 with this office on all meritorious determinations.
4 During these discussions, OSHA continues to
5 seek, where appropriate and applicable, the imposition
6 of punitive damages, and we intend to continue this
7 process in all future merit determinations.
8 A third recommendation from WPAC was the
9 development of outreach with regard to incentive
10 programs, specifically the Fairfax memo of March 12,
11 2012, and in response, OSHA, in March 2015, conducted
12 an internal webinar on the incentives/disincentives
13 from the Fairfax memo.
14 More than 400 OSHA employees participated in
15 the webinar, and the feedback was very positive.
16 In addition, OSHA is actively engaged in a
17 nationwide outreach plan which will include, among
18 other items, outreach information and materials
19 including the Fairfax memo, as well as its possible
20 implications under 29 CFR 1904, OSHA's record keeping
21 rule.
22 As mentioned previously, the agency is 72
1 currently seeking public comment on a proposed rule to
2 change its existing regulation with regards to record
3 keeping.
4 A fourth item that WPAC recommended was that
5 OSHA lobby to expand protections. For example, longer
6 statutes of limitations for some of the regulations
7 from 30 to 180 days.
8 OSHA is well aware of the limitations of
9 Section 11-C of the OSHA act. In fact, as Assistant
10 Secretary David Michaels testified in April of 2014
11 before the Senate Health Committee regarding the very
12 same recommendations presented by WPAC.
13 However, until Congress enacts any amendments
14 to the act, OSHA is limited in its authority and
15 ability to make any changes.
16 One of the older recommendations from the
17 March of 2014 WPAC meeting was for greater transparency
18 in OSHA's investigations.
19 OSHA has modified its initial opening
20 letters, what we call notification letters, and asked
21 the parties to share each other's position statements
22 and rebuttals during the beginning of investigations. 73
1 However, OSHA has and will continue to share
2 one party's documentation with the other party as part
3 of the agency's nonpublic disclosure policy, as
4 outlined in our manual.
5 In addition OSHA issued a memo in June to its
6 field offices regarding the importance of cross
7 referrals between the whistleblower and compliance
8 teams in instances where both a retaliation allegation
9 and an ongoing safety and health hazard may be present.
10 The last item that we have as a
11 recommendation from WPAC that’s open is consistency in
12 application and WPAC recommended that OSHA take steps
13 such as internal training programs to improve
14 consistency in the application of laws, regulations,
15 and statutes subject to OSHA's jurisdiction.
16 In response, OSHA has been diligently working
17 on overhauling its whistleblower training program.
18 A work group comprised of regional and
19 national whistleblower managers was convened.
20 A new whistleblower competency model was
21 developed, along with a training directive and the
22 clearance process, mirror that of the safety and 74
1 health, or CSHO, side of the house.
2 OSHA's overhauled training program increased
3 the number of mandatory courses from two to five within
4 three years of hiring new whistleblower investigators.
5 In addition, OSHA will develop statute-based
6 webinars and have them available on demand in its
7 internal training database, or Learning Link, as we
8 call it.
9 With that, I complete my update from the
10 Whistleblower Protection Programs, and I'll be happy to
11 answer any questions you may have.
12 CHAIR SPIELER: Thank you.
13 I have to say that you have certainly been
14 responsive -- the directorate has certainly been
15 responsive not only to the formal recommendations of
16 this committee but also to the areas in which there has
17 been obvious consensus in the conversations without any
18 formal recommendation, and I think we are very aware of
19 that, and I think it is really terrific that we can
20 bring to the agency, through our conversations,
21 concerns, and that they have been heard and that you
22 have thought about them and, in certain cases, acted on 75
1 them and always acted on them appropriately, and it
2 does make us feel like it's worth coming.
3 So, thank you for that.
4 Marcia?
5 MS. NARINE: Thanks. That was very helpful,
6 but I do have a couple of questions.
7 The first one is, I wasn't sure that I
8 understood what you were saying about WPAC's
9 recommendation about punitive damages.
10 I didn't understand whether you were saying
11 that -- you were clarifying what you already did or
12 that something changed.
13 That’s question number one.
14 And the second question -- I may have more
15 after I see the other pages -- relates to the big
16 disparity in results between the regions, because I
17 can't see, just glancing at it, necessarily a reason.
18 Is it because of staffing issues, or is there
19 some other explanation that might show why there's some
20 disparities in terms of -- especially when I'm looking
21 at the average days pending, average days to complete,
22 that kind of thing. 76
1 MR. HARBIN: Okay. If I may, I'll take on
2 the first question, and then I'll circle back around to
3 the second question.
4 So, the first question was regard to punitive
5 damages.
6 There was a recommendation of WPAC that --
7 and I'll read more about it to you -- OSHA should work
8 with the Department of Labor's Office of the Solicitor
9 to develop consistent, articulable standards regarding
10 the circumstances when punitive damages would be
11 appropriate in an OSHA Act Section 11-C retaliation
12 case, whether based on the standards set forth in the
13 whistleblower investigations manual or some other
14 standard.
15 WPAC further recommended that OSHA work with
16 the Offices of the Solicitor to achieve between
17 coordination between OSHA investigators and the Office
18 of the Solicitor on the appropriateness of punitive
19 damages in particular cases.
20 And finally, WPAC recommended that OSHA apply
21 these consistent, articulable standards and seek
22 punitive damages in appropriate cases in order to more 77
1 fully remedy and deter egregious conduct.
2 MS. NARINE: I remember all of those, because
3 I was here when we made all those recommendations. So,
4 my question was, were you explain -- were you
5 clarifying what you're already doing or were you saying
6 that something has changed?
7 MR. HARBIN: Clarifying what we were already
8 doing.
9 MS. NARINE: Okay. Thank you.
10 CHAIR SPIELER: Let me just interrupt for one
11 second. This is housekeeping.
12 We need to label things as exhibits for the
13 meeting, and so, the first will be the initial two-page
14 printout of the investigation data determinations and
15 remedies, and the second exhibit will be the
16 investigative data by statute of all regions, four
17 pages.
18 (Exhibit Nos. 1 and 2 were
19 marked for identification.)
20 CHAIR SPIELER: I'm wondering if it would be
21 useful to divide this conversation between the data
22 questions that maybe we could do all together and other 78
1 issues. Clearly, punitives was another issue, but why
2 don’t we do this?
3 Questions and comments about everything other
4 than the data first and then questions and comments
5 about the data, and that way -- we've handed out the
6 summary data on allegations under statutes and --
7 actually, the statute-based data, four pages, and you
8 can take a minute, if you haven’t already looked at it.
9 We did receive it by email last Friday. So,
10 you may have already looked at it in the meantime.
11 Eric.
12 MR. FRUMIN: Thanks.
13 So, you mentioned the recommendation for
14 upgrading your training and outreach efforts, which was
15 actually one that came from the Transportation Work
16 Group, and so, the committee -- the full committee,
17 when it accepted that recommendation and referred it to
18 you, was very interested in both the parameters and the
19 content of such training.
20 We actually amended the report to say that we
21 wanted to look at that ourselves. So, whatever the
22 appropriate way would be for you to share with us that 79
1 information, it would be in the -- continuing in the
2 spirit of the recommendation that we made to you.
3 Obviously, there's a lot that you need to do
4 internally and decide what aspects of it are
5 appropriate, but I can tell you that the only way we
6 made that recommendation in the first place was -- the
7 only way we were able to come to consensus on it was
8 with a shared understanding on our side that we would
9 have some ability to have some influence in what those
10 materials, that outreach would look like, for a whole
11 host of reasons.
12 I don’t want to belabor the situation now but
13 just to say that a number of the people in that
14 discussion in the work group and then this full
15 committee felt that that -- felt that we could provide
16 a useful role there.
17 So, I'll leave it at that, however you think
18 would be appropriate, but we would very much appreciate
19 that opportunity before the ink is dry,
20 MR. HARBIN: Okay. Thank you.
21 CHAIR SPIELER: Other non-data questions or
22 comments? 80
1 Ken.
2 MR. WENGERT: Thank you for the update.
3 I guess I'm more interested in your thoughts
4 as you're transitioning out, what your thoughts are for
5 opportunities for improvement. Where do you see it
6 going?
7 MR. HARBIN: With regards to --
8 MR. WENGERT: -- the entire program. Where
9 do you see the biggest opportunities?
10 MR. HARBIN: That’s actually a difficult
11 question to answer, cause that’s probably a little
12 above my pay grade. That might be more for Dr.
13 Michaels.
14 But I tell you one of the great things is to
15 see that the program was elevated. As I mentioned, the
16 change in the structure where the assistant regional
17 administrators were put out into the field.
18 I'm actually -- I did spend two years here in
19 OSHA's national office, but I actually spent my other -
20 - I started in '97, so doing the math here -- the other
21 16 years I spent in the field, and I really heartens me
22 to see how much Dr. Michaels and the rest of the 81
1 leadership in OSHA have put into strengthening -- kind
2 of leveling the playing field, if you will, between the
3 whistleblower programs and the other enforcement
4 programs that we have in the agency. It really brings
5 it forward.
6 And then the -- I can remember a time when
7 the strength for the whistleblower program out in the
8 field was very, very low, and to see us up now -- I
9 think the latest data puts us in the 135 or so people
10 across the agency that are involved in the
11 Whistleblower Protection Program.
12 It really bolsters the standing of the
13 program.
14 So, to me, coming from the field, that’s one
15 of the things that I really see moving the program in
16 the right direction,
17 CHAIR SPIELER: Greg.
18 MR. KEATING: Can I just ask a quick question
19 about the ADR pilot that you mentioned? You mentioned
20 that it's been overwhelmingly positive. You worked
21 with FMCS and OSHA is now training its own people.
22 Practically, how does it work, though, if you could 82
1 just give a little bit more meat on the bone.
2 MR. HARBIN: We actually have the directive
3 that really gives the guidance to the field on how the
4 ADR program is going to work, but generally speaking,
5 early on, it will be offered to the -- basically you
6 have the complainant, the worker, and the respondent,
7 the employer -- will be offered the opportunity to
8 participate in this alternative dispute resolution.
9 This will be very, very early on, once the
10 complaint is filed, and both parties will have to agree
11 to participate in it, and at that time, the
12 investigation -- if both agree to participate in it,
13 the investigation will stop for about three weeks,
14 roughly, and allow for this process to proceed.
15 That’s kind of the gist of it. If you want a
16 little deeper explanation, Mr. Rosa might be able to
17 help us out on that.
18 MR. KEATING: Well, specifically, Anthony,
19 what I'm interested in is who would then do the
20 mediation? How is it paid for? That kind of thing.
21 MR. ROSA: The mediation will be done in-
22 house by a dedicated, full-time employee of OSHA that 83
1 is no longer involved in the enforcement side of the
2 house.
3 That is, a person that has been trained,
4 either from FMCS or internally through the documents
5 that we received, cause what we did with FMCS, Federal
6 Mediation Conciliation Service, was asked them to
7 provide a train-the-trainer course for us so that our
8 field people that came in here to the national officer
9 can then train the rest of the staff but also develop
10 training modules and training materials for us so that
11 we can use those in-house.
12 So, it will be done by a dedicated person
13 that is no longer doing enforcement activity. That is,
14 a person that’s dedicated to complaint resolution.
15 CHAIR SPIELER: Richard.
16 MR. MOBERLY: Thanks again for coming here.
17 One of the things I heard you say was that a
18 recommendation was greater transparency in OSHA
19 investigations, and then I missed or didn't hear what
20 was being done in response to that recommendation, if
21 you could just tell me a little bit more about that.
22 MR. HARBIN: So, OSHA has modified its 84
1 initial opening letters, our notification letters, and
2 asked the parties to share each other's position
3 statements or rebuttals, the parties being the
4 complainants and the respondents.
5 MR. MOBERLY: That’s a new requirement?
6 MR. HARBIN: The new issue is that we have
7 modified the opening letters and asked that they --
8 asked them to share each other's positions. So, that’s
9 just a change -- I believe "change" would be the right
10 word.
11 MR. MOBERLY: Right. What we have done in
12 our initial notification letters to the parties, that
13 we have encouraged them to share their responses with
14 the other party.
15 That would expedite the review process by the
16 other side, and it would also show a good faith effort
17 from one party sharing it with the other party, but it
18 would also save us our resources of having us go ahead
19 and sending it out.
20 We still send it out to the other party. We
21 do have to provide -- we do have to review it and
22 provide certain redactions that need to be made under, 85
1 you know, nonpublic disclosure or FOIA act, but if the
2 other party shares it directly, that saves a lot of
3 time and they can expedite the process, and it creates
4 greater transparency between the two.
5 But we are still committed -- if one party
6 does not share with the other party, we are still
7 committed to making that copy available to them.
8 MR. HARBIN: Another thing that I mentioned
9 is that when OSHA has reason to believe that there is a
10 safety and health complaint and a whistleblower
11 investigation ongoing, both investigations will proceed
12 at the same time and together, to the extent possible.
13 CHAIR SPIELER: Just as clarification, does
14 that mean a referral from a whistleblower investigator
15 to a safety CSHO would sort of count as a complaint,
16 the equivalent of a complaint?
17 MR. HARBIN: A referral is pretty similar to
18 a complaint.
19 CHAIR SPIELER: Okay.
20 MR. HARBIN: A complaint would be something
21 from an active worker, a current employee of that
22 worksite, and then a referral is made by someone who is 86
1 not an employee but has a very good understanding that
2 that condition may exist at the moment.
3 CHAIR SPIELER: Okay.
4 MR. ROSA: And we would clarify with the
5 person calling that he or she is willing to file both
6 complaints. We want to make sure that they understand
7 the difference between a safety and health complaint
8 and a whistleblower complaint.
9 But when a complaint comes in and they're
10 alleging both issues, we want to capture all the
11 information and share it with both sides of the house.
12 CHAIR SPIELER: Jon.
13 MR. BROCK: I had a further question about
14 the mediation program, two questions.
15 One is, what types of cases are going into
16 that? Are there certain categories of cases or
17 profiles that tend to make their way into it?
18 And secondly, what's done to ensure that it's
19 a level playing field? And in particular, what sort of
20 support does the worker get for coming in there and
21 participating?
22 MR. HARBIN: With regards to the first 87
1 question, I don’t think we've had the process in place
2 long enough to characterize any particular kind of
3 cases that might be going into the ADR program.
4 And with regards to the second case, the
5 alternative dispute resolution approach, it's just --
6 from OSHA's standpoint, we only would have one person -
7 - that would be the ADR coordinator -- involved in it.
8 MR. ROSA: Correct. And like I indicated,
9 both parties need to request it, and that information
10 is maintained separate from the investigative file,
11 which means whatever happens during those negotiations
12 are not shared with an investigator if the mediation
13 fails.
14 So, it stays separate, under the ADRA. It
15 has to be maintained separate and not part of the
16 record in terms of the investigative file.
17 So, that gives the parties greater
18 opportunity to discuss anything they wish to discuss
19 that they may not have wanted to discuss if the case
20 was ongoing investigation.
21 MR. KEATING: Does each region have a
22 dedicated ADR coordinator? 88
1 MR. ROSA: We are in the process of working
2 on that.
3 MS. LESSIN: If both parties agree, then it
4 proceeds, but I would -- I think the selling point, if
5 I'm not mistake, is, for example, with 11-C, the
6 average time it would take to resolve a complaint is a
7 year.
8 So, the ADR would be, here, we can do it
9 quicker, right?
10 So, my question is, has there been an
11 analysis when -- when you said there were two regional
12 pilots and it was working very well and we're going to
13 expand it, have you looked at the settlement that came
14 out of ADR -- clearly, it happened quicker, but what
15 the settlement was versus what a settlement is likely
16 to be going through the non-alternative dispute
17 resolution process?
18 What does the worker get? You know, is it
19 equal and one is just shorter days, or do they lose
20 something going through? So, that’s the first
21 question.
22 MR. HARBIN: Well, the answer to that would 89
1 be, no, we have not looked at it. It would be hard to
2 determine, because as you might imagine, during the
3 investigative process, a lot of times things turn up
4 that no one was expecting, and it would really alter
5 the outcome of the investigation, and the ADR, the
6 alternative dispute resolution, as you mentioned, it
7 allows for a very fast resolution of the case and some
8 permanency to the closing of the case, so -- but we
9 have not gathered any data with regards to differences
10 between what was settled upon and what the final
11 outcome might have been otherwise.
12 MS. LESSIN: So, what would be of concern to
13 me is the decision that says it's working so we're
14 going to expand it. What does "working" mean?
15 MR. ROSA: Well, there's one thing I wanted
16 to add on to what Eric had mentioned.
17 There will be one possible difference, and
18 that would be in the amount of back pay, because if you
19 settle it sooner, you have less back pay, but OSHA is
20 still committed to ensuring that non-monetary relief is
21 there from the beginning or throughout the
22 investigation, whatever the case may be. 90
1 So, again, we don’t have all that specific
2 data, but we do maintain that anything that would be
3 part of the settlement, provided that a full
4 investigation had taken place -- it's still there in an
5 early resolution phase, albeit being a smaller back pay
6 -- a smaller back pay award.
7 MS. LESSIN: Can we get that data? Is that
8 data knowable? Is it something that we can get? And
9 also, I'll just add on my other question about which
10 types of cases went to ADR, and you said we can't
11 characterize.
12 Well, clearly, in the two regions where this
13 had been going on, you should be able to characterize
14 that. Is that correct? I mean, you know which cases
15 went into ADR. So, we could look at that data, at
16 least.
17 So, those are two data sets that, you know, I
18 would very much like to see.
19 MR. BROCK: Can we get the guidelines for the
20 program that you provide to the parties and the
21 investigator?
22 MR. HARBIN: Sure. We should have the 91
1 directive -- the directive is in the clearance process,
2 in the final stages of clearance, and when it is
3 completed, we will get a copy of it to the members of
4 WPAC.
5 MR. BROCK: Thank you.
6 CHAIR SPIELER: Marcia.
7 MS. NARINE: I have another data/ADR type
8 question, and that relates to -- I'm very familiar with
9 the ADR process with the EEOC, where the agency
10 recommends very quickly and people tend to take it up,
11 for a variety of reasons.
12 Employers may be just in it for completely
13 different reasons than the workers.
14 I'm wondering if you have any data, anecdotal
15 or otherwise -- obviously both sides have to agree to
16 it, but do you know which side tends to ask for it
17 first? Do you see it more coming from the employer's
18 side, from the worker's side?
19 And then, what feedback have you been getting
20 -- since you said it's very popular and successful --
21 from both the workers and the employers, and has any of
22 that feedback been used to maybe make some tweaks to 92
1 the program going forward?
2 MR. HARBIN: At this point, we do not have
3 any of the data responsive to your question, but we
4 will certainly take that into consideration going
5 forward. Those are very good points to make.
6 CHAIR SPIELER: I would make one final point,
7 which is -- I'm trying to imagine how this works,
8 particularly given the number of workers who are likely
9 to be un-represented when they go into this process and
10 the number of employers who may have legal
11 representation.
12 And maybe this is a conversation for our next
13 meeting, because it would be useful, I think, to see
14 the directive and talk about it, because it isn’t clear
15 to me that workers necessarily know the full range of
16 what they can expect, short- or long-term, and it is --
17 if you have only your mediator there with them and
18 there's some -- I wouldn’t say pressure, but a goal of
19 settlement, then it may not be as balanced a playing
20 field as perhaps we would like it to be.
21 And so, I hope, in looking at the directive,
22 that you think about those issues, and I suspect you 93
1 have, since you are generally attentive to those
2 issues, but I think after we see the directive, it
3 might be useful to have a further conversation about
4 this at our next meeting.
5 And if you can put data together, that would
6 actually be useful, because the question of what do you
7 mean when you say it worked well is always a question
8 that I think you'll hear from members of this
9 committee.
10 And each of us, I bet, could tell you
11 anecdotes about conversations about working well.
12 Are there other questions or comments?
13 J.J.
14 MS. ROSENBAUM: Just two more pieces on the
15 data set, if they're available.
16 One would be if limited English-proficient
17 workers are participating at the same rate as other
18 workers and how those issues are being dealt with.
19 And also, if claims involving temporary
20 staffing agencies for particular sectors are coming up
21 more or being chosen more to participate.
22 MR. HARBIN: Thank you. 94
1 CHAIR SPIELER: Okay.
2 So, I asked you to segment off comments and
3 questions about the data set, and I'm going to open it
4 up now for questions or comments about the data.
5 MS. NARINE: If you could answer, to start
6 off with, the one I'd asked originally about the
7 disparities in the --
8 CHAIR SPIELER: So, disparities among the
9 regions --
10 MS. NARINE: Is it really a staffing issue,
11 or is there something else going on?
12 MR. HARBIN: I was actually curious about
13 exactly what you meant by disparities between the
14 regions.
15 MS. NARINE: I'm looking at some that have a
16 much -- I'm trying to understand why there's such a
17 disparity in average days to complete, average days
18 pending, because if I look at the number of cases that
19 some of the regions have, I can't get my mind around a
20 specific correlation, so -- and maybe if I spent a lot
21 of time looking at this document, I might be able to
22 figure that out, but if you know something right off 95
1 the top of your head, that might be helpful.
2 MR. HARBIN: Mr. Rosa spends a lot of time
3 analyzing the data, and I'm going to defer to him on
4 this.
5 MR. ROSA: I can give you a little history
6 behind this, cause I was the ARA in Region IV, before I
7 came here, and I was one of the two pilots, and as you
8 see the numbers from Region IV, I can at least provide
9 what my experience is.
10 The numbers are -- you can see like average
11 days pending is pretty low and average days to complete
12 is pretty low. It wasn't like that. It was different.
13 So, what's happened is that, as we mentioned
14 earlier, Dr. Michaels mentioned it and so did Eric
15 Harbin mentioned that two regions had piloted this ARA
16 structure and developed some initial strategies of how
17 to do caseload management, and that caseload management
18 had increased in the efficiency of getting the cases
19 completed without affecting the outcome, because you
20 see the outcome in those two regions, that it didn't
21 affect the outcome.
22 That's been implemented in all the other 96
1 regions, and you will see, for example, Region VII has
2 done a significant increase, Region VI has done it, and
3 I don’t want to name -- cause all my colleagues are
4 here, but each region is working on it, one by one.
5 CHAIR SPIELER: He wouldn’t even if you
6 weren't here.
7 MR. ROSA: To be quite honest with you, it
8 takes time, because when I started this initiative --
9 we called it the backlog initiative, and I started this
10 in 2010.
11 It actually took two years for the numbers to
12 get worse before they got better, because we needed to
13 tackle the underlying issue of what was going on with
14 how we were doing our investigation and how it was
15 being supervised and reviewed.
16 So, you're going to see trends that is going
17 to take some time for the rest of the other regions to
18 fall in line, and there could be other variables.
19 There could be a staffing issue. There could
20 be, you know, a small region that has two or three
21 people that are out for whatever reason that can cause
22 some effect. 97
1 So, there could be other variables that we
2 can't necessarily control, but the average that you
3 will see is where the regions are moving in that --
4 kind of that same direction.
5 MS. NARINE: Thank you. That’s very helpful.
6 CHAIR SPIELER: Nancy.
7 MS. LESSIN: I just want to make sure that
8 I'm looking at this correctly, and I'm looking at --
9 page 3 is -- the data set on page 3 for FY 2014, and
10 I'm looking at the subset of complaints coming in
11 alleging retaliation for participating in safety and
12 health activities versus complaints coming in alleging
13 retaliation for reporting accidents and injuries, and
14 in particular, I'm looking at FRSA and OSHA 11-C, and
15 it appears to me, once again, in this most recent
16 Federal fiscal year, that there are more complaints
17 coming in for workers alleging retaliation for
18 reporting injuries than for participating in safety and
19 health activities, and I want to make sure that that is
20 what I'm seeing.
21 MR. HARBIN: That is correct. That is what
22 you're seeing. 98
1 CHAIR SPIELER: And particularly under FRSA.
2 MS. LESSIN: Okay. And what is complaint
3 management? What is that? What is that category?
4 MR. ROSA: That’s when they file a safety and
5 health complaint internally to management.
6 MR. KEATING: So, complaint management is
7 where there is alleged retaliation because I complained
8 to management.
9 MR. ROSA: Correct.
10 CHAIR SPIELER: Yes, Christine.
11 MS. DOUGHERTY: I just want to add, as a
12 person that goes in a state plan state and checks the
13 boxes for, you know, reporting this stuff, is that
14 these categories is what you consider to be the primary
15 complaint of the employees.
16 So, they might have --
17 MR. ROSA: That’s correct.
18 MS. DOUGHERTY: They night have made a
19 complaint to management. They might have participated
20 in safety and health. They might have also reported an
21 injury. So, the individual person doing the intake is
22 deciding which one is the primary category. 99
1 MR. ROSA: Thank you for raising that.
2 CHAIR SPIELER: EOC data has the same
3 problems.
4 MR. ROSA: Yeah. And we mentioned that at
5 the last meeting when I gave the data overview, that
6 certain fields only allow us to do one entry.
7 So we're in the process of -- and we actually
8 have it in our schedule -- some data changes and
9 upgrades we want to do as resources permit that’s going
10 to allow us to check multiple boxes.
11 CHAIR SPIELER: It can lead to different data
12 problems.
13 MR. ROSA: Correct.
14 CHAIR SPIELER: Eric.
15 MR. HARBIN: One thing I wanted to point out
16 to Ms. Lessin is that, if you look at complaint
17 management and you follow it down to OSHA, the number
18 is actually higher than participation in safety and
19 health activities and higher than reporting accidents
20 and injuries combined.
21 MS. LESSIN: Correct. I saw that. I just
22 wanted to parse the two that I talked about. 100
1 MR. FRUMIN: So, these data, by statute, are
2 very helpful in understanding -- in giving outsiders
3 like us a little clearer focus on the different aspects
4 of the program, because obviously the -- if you look at
5 the top three statutes -- OSHA, FRISA, and STA --
6 together they account for, you know, like 90 percent of
7 the whole program.
8 So, whatever is going on under SOX or, you
9 know, environmental statutes, your basic meat and
10 potatoes practices are going to be driven by those, and
11 so, the relationship of what happens under the OSHA act
12 itself to these cases, to me, is particularly
13 important.
14 So, when looking at Marcia's point, you know
15 -- well, here I'm looking at these disparities among
16 the regions, and I'm saying, wow, Region II -- this is
17 my home region. I love Region II. Rich Mendelson will
18 tell you I love Region II.
19 But they have 778 days to complete. Why is
20 that? That’s crazy. That's off the charts. And then
21 I know that Region II also has, I think, like the
22 highest rate of employer contests. 101
1 It's not just the whistleblower program which
2 may suffer from, shall we say, employer intransigence
3 and dragging things out or people hiring too many
4 lawyers or whatever you want to say it is.
5 I mean, so I'm speculating here -- this is
6 speculation, but it would be -- it just points to --
7 the first lesson of this, to me, is that -- is that
8 even though we're looking at however many different
9 statutes, the relationship to the enforcement and
10 compliance program, particularly under OSHA, is -- it's
11 very important to take that into account.
12 The other thing is that, if it were possible
13 to look at the statute data in a more malleable form,
14 that would give us a chance to use our own imaginations
15 here and follow some leads. That would be helpful.
16 So, I don't know if that is possible,
17 particularly that would include the regional data, so
18 we could compare --
19 CHAIR SPIELER: Could you explain what you
20 mean by "malleable"?
21 MR. FRUMIN: Well, these are PDFs of Excel
22 files. So, getting Excel files instead of PDFs would 102
1 be cool.
2 I spent the last half-hour transposing a PDF
3 document numbers into an Excel spreadsheet on my
4 computer here so I could even run some numbers while
5 we're talking.
6 So, that's one, but particularly the
7 allegation data, to me, are really important, what
8 we're talking about here.
9 Granted, we're dealing with primary
10 allegation not the allegation summaries that we know
11 are so important. We had some experience in the
12 transportation group with looking at the allegation
13 summary information, and that was extremely helpful, as
14 well.
15 So, in whatever form that you eventually feel
16 comfortable sharing that data, it would be -- it would
17 make it easier for us to provide you some more
18 thoughtful feedback.
19 MR. HARBIN: Thank you very much.
20 We continue to look at our data and what's
21 available to us. We do have certain limitations on
22 what we're able to get out of the data. 103
1 As mentioned by Ms. Dougherty, we're relying
2 on the one person who is entering the information, and
3 so, it makes it a little difficult, but we will
4 continue to look at how we get our data in, what we can
5 -- what we're able to share with you.
6 MR. FRUMIN: I appreciate that.
7 MR. HARBIN: Thank you.
8 CHAIR SPIELER: Richard.
9 MR. MOBERLY: We've talked about several
10 different issues related to settlement. So, one of the
11 things I noticed on this, there's "settled," and it has
12 some sort of OSHA as a party, and then there's "settled
13 other."
14 Does that incorporate some of the ADR
15 programs that we've been talking about? What does it
16 mean when OSHA is a party? Cause I know, under some
17 statutes, like SOX, they have to approve the settlement
18 agreement.
19 Does that mean they're a party or is that --
20 they do that for all --
21 MR. ROSA: Well, under the OSHA "settled" or
22 the one that says just simply "settled" means that the 104
1 parties agreed to the standard OSHA settlement
2 language, which we means we have -- in the
3 whistleblower manual, we have standard language.'
4 If it says "settled other," that means that
5 that was most likely a third-party settlement, a
6 private settlement to which OSHA received a copy and
7 then approved it.
8 So, it's not necessarily OSHA standard
9 approved language, but OSHA would have to approve it
10 anyway, but that’s the difference between those two
11 columns.
12 MR. MOBERLY: So, it wouldn’t say which of
13 these were actually as part of the ADR program.
14 MR. ROSA: It does not say that, no.
15 MR. MOBERLY: What were the regions of the
16 ADR program?
17 MR. ROSA: It was piloted in Region V and
18 VIII.
19 MR. MOBERLY: Thank you.
20 MR. HARBIN: Chicago and San Francisco.
21 MR. MOBERLY: Thanks.
22 CHAIR SPIELER: Christine. 105
1 MS. DOUGHERTY: The data on the four-page
2 Exhibit 2, again, it's Federal data that’s showing 338
3 OSHA complaints. We've got 25 state plan states that
4 do nothing but the 11-C, and those numbers aren’t
5 reflected here.
6 So, we're even looking at more in the 11-C
7 area that are filed nationally than just 338.
8 MR. HARBIN: That’s a good point. That
9 carries true not only for our whistleblower program but
10 also on the safety and health side. We separate the
11 Federal between the -- from the state plan.
12 CHAIR SPIELER: I actually have just a couple
13 of comments and questions, and then, unless there are
14 other people burning to ask questions, we'll take a
15 break. We're running a bit behind.
16 On the first exhibit, do you have -- there's
17 a column for "reinstated." Do you have any idea how
18 many of these involve preliminary reinstatement?
19 MR. HARBIN: No.
20 CHAIR SPIELER: Do you keep any data on
21 preliminary reinstatement?
22 MR. HARBIN: No, we do not keep data on 106
1 preliminary reinstatements.
2 MR. ROSA: Our database currently just has
3 one box that says "reinstated."
4 CHAIR SPIELER: I really urge you to --
5 MR. ROSA: In fact, another thing that we
6 have been looking at is whether we can -- how we -- how
7 many cases were offered reinstatement to how many
8 accepted reinstatement. So, we're also looking to
9 that, as well.
10 CHAIR SPIELER: And on Exhibit 2 -- do you
11 know how many -- which cases go on to ALJ hearings and
12 which ones don’t, and whether it's reflected by a
13 particular outcome at the OSHA level, or is that just
14 completely sort of not opaque in the data?
15 Because you have the kicked out, but we don’t
16 really know which ones have gone to ALJ. Obviously not
17 11-C but under the other statutes.
18 MR. ROSA: Some of the things that may be
19 affected by an ALJ decision could be the total amount
20 of money and/or the reinstatement, cause that amount is
21 constantly changing.
22 We don’t have a field that says initial -- 107
1 you know, initial relief order and current relief
2 order. We just have one column that says how much was
3 ordered relief and whether the person was reinstated or
4 not.
5 CHAIR SPIELER: So, that includes ALJ relief
6 ordered?
7 MR. ROSA: If, for example, we issued a merit
8 case and the ALJ reversed it, we have to go back to the
9 system and modify that record.
10 CHAIR SPIELER: Right. But what if you issue
11 a non-merit and then it goes on to an ALJ and an ALJ
12 awards --
13 MR. ROSA: Correct.
14 CHAIR SPIELER: -- damages? Then how does it
15 show up here?
16 MR. ROSA: What we do is we go back to the
17 system and -- we don’t mark it as an agency merit.
18 This is the merit done outside of our agency.
19 CHAIR SPIELER: Right.
20 MR. ROSA: But we do have to go into the
21 database and update any monetary amount and whether the
22 judge ordered reinstatement. 108
1 CHAIR SPIELER: Okay. But we don’t know how
2 many went to ALJ.
3 MR. ROSA: No.
4 CHAIR SPIELER: Okay. I, by the way, do
5 think it's really interesting that $20.3 million of the
6 total amount of damages that were ordered, of the $35
7 million total, was in SOX cases, and given the small
8 number of SOX cases in the system, and it speaks to
9 perhaps their importance in the system from other
10 points of view, but it certainly -- by combining them,
11 it creates a kind of odd total picture that I think, as
12 an advisory committee, we should think about.
13 MR. ROSA: And that all pretty much also
14 depends on what types of settlements occurred that
15 year. You may have a case that may have settled for a
16 significant amount of money and not necessarily have
17 settlements that have that much money.
18 So, some years, you may find, depending what
19 the settlement amounts occurred within that particular
20 fiscal year, you know, those numbers may fluctuate, but
21 traditionally, SOX usually does have a high settlement
22 amount. 109
1 MR. FRUMIN: In 2012, based on some data you
2 gave us then, or last year, the SOX money was 5.5
3 million.
4 MR. ROSA: Right.
5 MR. FRUMIN: So, it does fluctuate quite a
6 bit, and in that year, FRISA was higher --
7 MR. FRUMIN: -- was 8 million. So --
8 MR. ROSA: Right.
9 MR. FRUMIN: -- hence, longitudinal data,
10 longitudinal series of the same case data, as well as a
11 more detailed -- ability to look at more detail would
12 also be helpful when you're thinking what you can
13 provide to us.
14 CHAIR SPIELER: I want to make clear that it
15 isn’t so much that the advisory committee needs data as
16 that I think we have a shared view that, in order to do
17 the kind of planning and strategic thinking that you
18 need to do in the directorate and the ARA's need to do
19 in the regions, that the data we're talking about would
20 be very useful to you.
21 We actually also understand the huge
22 impediments within the agency for both changing data 110
1 sets and for obtaining data, and I think every member
2 of the committee would join me in saying any way we can
3 be helpful in that process, we would be more than
4 willing to do that.
5 And with that, let's take a somewhat belated
6 break, 10 minutes.
7 (Recess.)
8 CHAIR SPIELER: Next on the agenda is Megan
9 Guenther to talk to us about the clarification
10 regarding investigative standards for whistleblower
11 claims.
12 CLARIFICATION OF THE INVESTIGATIVE STANDARD
13 FOR OSHA WHISTLEBLOWER INVESTIGATIONS
14 MS. GUENTHER: Good afternoon. My name is
15 Megan Guenther. I am the counsel for whistleblower
16 programs in the Fair Labor Standards Division in the
17 Solicitor's office.
18 I advise OSHA's national office on a variety
19 of the statutes, mostly the ones that go -- entirely
20 the ones that go to ALJ hearings, with the exception of
21 the Surface Transportation Act and the Seaman's
22 Protection Act. 111
1 Most of my work is under the Federal Railroad
2 Safety and the Sarbanes-Oxley Act. I also don’t work
3 on Section 11-C.
4 So, to the extent that you have questions
5 about how this guidance works in the context of Section
6 11-C, I may need to defer to Louise, who works in the
7 OSH Division and has dealt with that statute.
8 Dr. Michaels asked me to come and present
9 today about the guidance that we put out this morning
10 clarifying that the standard for whistleblower
11 investigations under the OSHA whistleblower statutes is
12 -- whether there's reasonable cause to believe that a
13 violation has occurred.
14 CHAIR SPIELER: Let me just interrupt you for
15 one second. That guidance is in your packets and
16 should be marked as Exhibit 3 for the meeting.
17 (Exhibit No. 3 was marked
18 for identification.)
19 MS. GUENTHER: Dr. Michaels had last reported
20 to you on this back in September, and Louise and I and
21 others in the OSHA and FLS divisions have worked with
22 OSHA on issuing the guidance. 112
1 The point of it is really to clarify and
2 reinforce what is the standard, what is the standard in
3 many, many of the statutes that say that the objective
4 of OSHA's whistleblower investigation is to determine
5 whether there's reasonable cause or reason to believe
6 that a violation of the statute has occurred.
7 This means in cases that provide for ALJ
8 hearings, OSHA should be issuing merit findings when it
9 believes there's reasonable cause to believe there's a
10 violation, which is a somewhat lower standard than the
11 standard that applies at a whistleblower trial before
12 an administrative law judge.
13 Under Section 11-C of the OSH Act, the memo
14 clarifies that OSHA, if it has not already done so --
15 and we're going to emphasize this, because OSHA and the
16 Solicitor's office have a very fluid relationship.
17 They consult early. The Solicitor's office
18 has an open door to OSHA when questions arise during an
19 investigation.
20 But OSHA has not already, the latest point at
21 which it should start talking with the Solicitor's
22 office about whether an 11-C or other case that goes to 113
1 District Court litigation is appropriate for litigation
2 is when OSHA has reasonable cause to believe there's a
3 violation.
4 And we thought that this clarification would
5 be helpful, because while that is the standard in the
6 statutes, it's standard in the regulations, there are
7 parts of OSHA's manual that could be read as applying a
8 higher standard, and we just wanted to put this out to
9 make sure that whistleblower investigators are on the
10 same page, that there's consistency through the program
11 about what the investigative standard is, what the role
12 of the investigator is.
13 This would -- by focusing on the appropriate
14 investigative standard that is whether there's
15 reasonable cause or reason to believe a violation has
16 occurred, it may help with avoiding prematurely
17 dismissing cases that could potential be meritorious.
18 It can promote consistency, and in some
19 circumstances, it may also help OSHA reach a merit
20 finding more quickly, because they are looking at
21 whether the person could succeed based on the evidence
22 gathered in the investigation. 114
1 They're not looking for an absolute level of
2 certainty that the whistleblower will succeed in a
3 hearing.
4 Just to kind of say what -- reiterate what
5 the memo says about what reasonable cause means, it's
6 not that you, as an investigator, believe everything
7 the complainant says nor do you believe everything the
8 respondent says.
9 It's also not that you don’t conduct an
10 investigation.
11 Based on everything that’s submitted and
12 gathered during the investigation -- and there's no
13 change in how the investigations are conducted in terms
14 of which side gets what documentation. OSHA still will
15 engage in all of its information-sharing between the
16 parties.
17 But based on all of what's gathered or
18 submitted during the investigation, does OSHA believe
19 that a reasonable judge could find the complaint has
20 merit? Could the person win at trial?
21 And if OSHA believes that a reasonable person
22 could succeed, then it should be issuing a merit 115
1 finding in those cases that provide for findings, that
2 go to ALJ hearings, and under 11-C, if it hasn’t
3 already started working with the Solicitor's office, it
4 should begin working with the Solicitor's office.
5 And I think that is all I have prepared to
6 say about the clarification, but I'm definitely
7 available to answer questions if folks have questions
8 for me.
9 CHAIR SPIELER: Questions?
10 MS. LESSIN: What changes do you anticipate
11 seeing as a result of this memo, if any?
12 MS. GUENTHER: Probably the changes will be
13 at the margins, because I think that a lot of folks in
14 the program already will -- had internalized that the
15 reasonable cause standard is the standard that applies,
16 that an investigator steps back a little bit.
17 But you know, to the extent that we may have
18 implied there was a higher standard, now we've been
19 explicit that investigators should be looking at this
20 "could succeed on the merits" standard, rather than
21 kind of a higher, definitely the whistleblower will be
22 successful. 116
1 CHAIR SPIELER: I could be wrong, and I feel
2 like I should know the answer to this by now, but in
3 those -- under those statutes where people can take
4 their case to an ALJ, does OSHA have to close its
5 investigation before they can proceed to an ALJ?
6 MS. GUENTHER: Yes.
7 CHAIR SPIELER: Can they request that it be
8 closed in some way at the point at which the time
9 period for an investigation has passed in order to move
10 more quickly to the ALJ?
11 MS. GUENTHER: No, not under the rules as
12 they currently are.
13 CHAIR SPIELER: So, presumably this
14 clarification would speed up that process, but I'm
15 wondering about your thoughts about this -- and maybe
16 it's off-topic, but it does seem to me that if a
17 complainant is represented by counsel and intends to
18 take a case forward to an ALJ if there isn’t a quick
19 settlement during the investigative process, that
20 speeding them along might make a lot of sense from both
21 OSHA's standpoint and the parties' standpoint.
22 Is there any way to imagine that OSHA could 117
1 move toward that, or is that beyond what you can
2 discuss?
3 MS. NARINE: I had a similar question. Are
4 you trying to analogize to requesting an immediate
5 notice of right to sue at the EOC?
6 CHAIR SPIELER: Like that.
7 MS. NARINE: I was going to ask the same
8 question.
9 MS. GUENTHER: You know, that’s off-topic.
10 There was -- there was an item on OSHA's operating plan
11 a couple of years ago -- maybe it was even last year --
12 not pursued kind of very actively lately -- that was
13 kind of along those lines.
14 CHAIR SPIELER: But presumably what we're
15 talking about right now may help to move cases more
16 quickly through the process.
17 MS. GUENTHER: Correct.
18 MR. KEATING: As everyone on the committee
19 knows, I represent management, and I will also
20 acknowledge that my large area of focus as I litigate
21 these cases around the country is more in the SOX-
22 related cases. 118
1 So, with those caveats, I can also tell you
2 that one of the things that is frustrating for
3 employers that I represent is that there are really
4 four bites at the apple in these cases.
5 There's the investigative stage. Then
6 there's the ALJ stage, which is de novo, as I
7 understand it.
8 MS. GUENTHER: Uh-huh.
9 MR. KEATING: Then there's the ARB, which is
10 again de novo, and even if the ARB has heard and fully
11 been briefed on the case but it hasn’t gone to a final
12 determination, they can still kick out and go to
13 Federal court, again de novo.
14 And there are circumstances where these cases
15 go on for years and can take a lot of time and money
16 and expense to defend from an employer's standpoint,
17 and while I understand lowering the standard at the
18 investigative level on one hand to make it faster and
19 essentially take a first glimpse and then if there's
20 really no reasonable cause to believe that anything
21 exists, only then kick it out, I would jus note that,
22 if that’s going to be the determination, then I can 119
1 find a lot of employers being frustrated that they then
2 have to go through an ALJ trial de novo when an
3 investigator has found that there's not even reasonable
4 cause to think this would prevail.
5 MS. GUENTHER: The ARB reviews the ALJ for
6 substantial evidence. So, it's not de novo.
7 MR. KEATING: Okay.
8 MS. GUENTHER: Your other question, as I
9 understand it, was employers will be frustrated if the
10 -- if OSHA finds reasonable cause --
11 MR. KEATING: If the investigator finds that
12 there is no reasonable cause to believe a violation
13 exists, which is a lower standard than even what an ALJ
14 would have to decided, and yet they then have to go
15 before an ALJ, de novo, and start all over again.
16 MS. GUENTHER: But that’s the way it
17 currently is, as well.
18 CHAIR SPIELER: Isn't that statutory?
19 MS. GUENTHER: That’s statutory, right. So,
20 right now, when you get a non-merit finding out of OSHA
21 -- what you get under this memo will resemble in many
22 ways what you get now, which is it will say there was 120
1 no reasonable cause. It will say, if you're getting a
2 dismissal, this is why.
3 You know, if there is reasonable cause, it
4 will say there is reasonable cause and this is why, and
5 then it will have an order which you need to object to
6 or else the order will become a final order of the
7 Secretary.
8 Those two basic things have not changed, and
9 either way, before and now, either party can object and
10 ask for a de novo review.
11 So, that kind of -- you know, the kind of
12 four bites at the apple that you're talking about
13 doesn’t change with this. You have the same bites you
14 had before.
15 MR. KEATING: So, then I guess I'd ask, then,
16 what was the compelling reason to go and undertake this
17 exercise to create the memo clarifying the standard?
18 MS. GUENTHER: Part of it's that the standard
19 is statutory, and the OSHA investigation is supposed to
20 -- some of the statutes say 60 days is the amount of
21 time an investigation should take. It's not -- under
22 the statute -- you know, meant to be a 778-day process 121
1 for the investigation. OSHA's role is kind of a
2 screening role and toward a preliminary reinstatement,
3 help flesh out the issues.
4 And to the extent we can make clear what the
5 appropriate investigative standard is and apply that
6 consistently and accurately across the country, it will
7 help with the process more generally.
8 CHAIR SPIELER: Thank you, Megan.
9 We're going to move now to the public comment
10 part of this meeting. I know we have at least one
11 person who has asked to speak, but before we do that, I
12 know the agency has received one comment that was sent
13 in electronically and anonymously, and in order to make
14 sure it's part of our record, I have asked Anthony Rosa
15 to read it to the committee members.
16 MR. ROSA: All right. It was sent to us on
17 April 1, 2015, to the Whistleblower Protection Advisory
18 Committee, WPAC, Occupational Safety and Health
19 Administration, OSHA, Washington, DC.
20 To Whom It May Concern: I am writing to call
21 your attention to a critical issue in the investigatory
22 process of whistleblower retaliation complaints that I 122
1 believe is having a significantly harmful impact on
2 actual whistleblowers that have suffered retaliatory
3 discharge and a chilling effect on potential
4 whistleblowers.
5 Specifically, I want to call to your
6 attention what I believe to be either a lack of
7 awareness among OSHA staff concerning deadlines
8 contained in OSHA's whistleblower rules related to
9 issuing of an order of preliminary reinstatement of a
10 wrongfully discharged employee or a routine lack of
11 compliance with such deadlines due possibly to a lack
12 of OSHA staff resources or inadequate internal policies
13 and procedures.
14 By way of background, certain of OSHA's rules
15 for investigating claims of retaliation require OSHA to
16 order preliminary reinstatement of a discharged
17 employee within 60 days after the filing of such
18 employee's complaint with OSHA if OSHA has reasonable
19 cause to believe that the employee engaged in protected
20 activity, the employer was aware of such protected
21 activity, the employee suffered adverse employment
22 action, and the employee's protected activity was a 123
1 contributing factor in employer's decision to take
2 adverse employment action.
3 For example, 29 CFR 1980.105 and 29 CFR
4 1985.105.
5 Additionally, such rules set forth specific
6 timeframes for employers to respond to a complaint of
7 retaliation, presumably to enable OSHA sufficient time
8 to issue an order of preliminary reinstatement with the
9 60-day period where warranted.
10 Yet, based on my personal knowledge and prior
11 comments to and discussed of the WPAC, it appears that
12 these deadlines are routinely ignored and that
13 wrongfully discharged whistleblowers are suffering
14 extreme financial hardship for months or even years
15 while OSHA conducts its investigation.
16 Such financial hardship can lead to severe
17 emotional distress, foreclosure or repossession of
18 homes or other property, substantial reputational harm,
19 adverse credit standing, physical ailments cause by the
20 emotional distress, diminished ability to obtain new
21 employment due to adverse credit standings, etcetera,
22 and these harms may be sustained not only by the 124
1 whistleblower individual but also the whistleblower's
2 spouse, children, and other dependents.
3 The anti-retaliatory statutes of OSHA's own
4 whistleblower rules require preliminary reinstatement
5 within 60 days of the filing of an employee's complaint
6 with OSHA presumably are designed to mitigate the
7 damages sustained by an employee that was potentially
8 wrongfully discharged by placing the financial burden
9 on the employer during the pendency of OSHA's full
10 investigation.
11 Stated differently, OSHA's rules require the
12 preliminary order of reinstatement to be issued within
13 60 days of the filing of the employee's complaint,
14 presumably to avoid placing an undue hardship on the
15 employee during the pendency of OSHA's full
16 investigation, where OSHA, based on the information
17 gathered within the initial 60-day period, has
18 reasonable cause to believe retaliation and violation
19 of law has occurred.
20 If potential whistleblowers come to believe
21 that they may have to wait months or even years to be
22 reinstated if wrongfully discharged, such employees may 125
1 simply conclude that it is not worth it to come
2 forward.
3 By failing to comply with its own rules
4 concerning the deadlines for issuing an order of
5 preliminary reinstatement, I'm concerned that OSHA is
6 inadvertently creating a significant disincentive to
7 potential whistleblowers and is undermining the goals
8 that the anti-retaliation statutes enacted by Congress
9 were designed to achieve.
10 Accordingly, I respectfully request that the
11 WPAC evaluate and discuss:
12 (1) OSHA's process for issuing an order of
13 preliminary reinstatement.
14 (2) OSHA's compliance with its own rules
15 requiring that preliminary reinstatement be ordered
16 within 60 days of the filing of a complaint of wrongful
17 retaliatory discharge.
18 (3) The awareness among OSHA staff of the 60-
19 day deadline for ordering preliminary reinstatement on
20 the applicable OSHA rules and anti-retaliation
21 statutes.
22 Thank you in advance for your attention to 126
1 this important issue affecting America's employees that
2 are committed to doing what is right even when doing so
3 exposes them to a risk of retaliation and the attendant
4 consequences of such retaliation.
5 And by the way, this was an anonymous
6 complaint filed.
7 CHAIR SPIELER: I think maybe the right thing
8 to do is to mark that as Exhibit 4 for the meeting
9 record, and we can return to those issues tomorrow when
10 we talk about the sort of next topics that the WPAC
11 would like to address.
12 MS. NARINE: Do we get a copy of that letter?
13 PARTICIPANT: Sure, we can get you a copy.
14 CHAIR SPIELER: Thank you.
15 (Exhibit No. 4 was marked
16 for identification.)
17 CHAIR SPIELER: While we're marking exhibits,
18 I'd like to mark as Exhibits 5-A and B the "Know Your
19 Rights," one in English -- "A" in English, "B" in
20 Spanish, and hand them out to the committee members.
21 127
1 (Exhibit Nos. 5-A and 5-B
2 were marked for
3 identification.)
4 CHAIR SPIELER: And 6 is the NBC news report
5 on the TRO in Alabama.
6 (Exhibit No. 6 was marked
7 for identification.)
8 CHAIR SPIELER: Is Tom Devine here? I know
9 that you requested the opportunity to address the
10 committee, and you're on.
11 MR. DEVINE: Thank you for accepting my
12 participation in today's program. I'm sorry that I
13 couldn’t be here for the full meeting. I just had
14 schedule conflicts with my clients.
15 But I made sure that they would be cancelled
16 in order to find time to participate, because the
17 stakes and the issue I'm speaking about are extremely
18 high.
19 The Government Accountability Project and the
20 Zuckerman Law Firm have presented a petition to the
21 Department to tighten up its policy that shields
22 whistleblowers from gag orders that would directly or 128
1 indirectly restrict or chill protected activity under
2 the statutes the Department is charged with enforcing.
3 We recognize that the Department has had a
4 policy since the 1980s that’s consistent with the
5 objectives that we're seeking, but we believe that it
6 has become outdated over time and it needs a makeover
7 in order to keep pace with the corporate tactics that
8 are restricting the flow of protected information.
9 I'll start by just giving kind of a menu of
10 some of the common tactics that are current very common
11 and prevalent but do not necessary find themselves
12 being restricted under the current Department of Labor
13 policies.
14 I'll say in overview that my analysis is
15 actually consistent with one of the members of the
16 advisory committee, Professor Moberly, who, along with
17 Mr. Zuckerman and another attorney, Jordan Thomas, who
18 specializes in SEC issues, published a Law Review
19 article on this in the ABA Journal of Labor and
20 Employment Law for fall of 2014.
21 I basically viewed these restricted into five
22 categories. 129
1 The first one is conditions of employment
2 that bar confidential whistleblowing to government law
3 enforcement agencies.
4 Sometimes this requires an advance notice to
5 the corporation of all the evidence that an employee is
6 going to be providing to a government law enforcement
7 agency.
8 There's two fundamental problems with this.
9 Number one, many people remain silent
10 observers rather than blowing the whistle at all if
11 they can't do it confidentially, due to fear of
12 retaliation.
13 It's why we have all these statutes. There's
14 a genuine fear of retaliation.
15 And many whistleblowers will choose to bite
16 their tongues rather than rely upon the uncertainty of
17 legal rights. We will restrict the flow of
18 information.
19 Second, to the extent that the corporation is
20 guilty of misconduct, particularly if there's criminal
21 misconduct, this is making obstruction of justice a
22 prerequisite for employment. 130
1 It can absolutely destroy the government's
2 law enforcement investigation if the defendant knows
3 about all the evidence of its own alleged misconduct
4 before the government sees it, but this is a common
5 tactic.
6 The second tactic that we're concerned about
7 is waiver of statutory benefits for whistleblowing.
8 This would cancel, as a condition of employment, the
9 leverage in America's most effective anti-corruption
10 laws, laws such as the False Claims Act, which also
11 requires confidentiality.
12 These laws have skyrocketed fraud recoveries
13 involving federal spending, and the Dodd-Frank law,
14 which has similar incentives for whistleblowing
15 disclosures, has led to probably the largest volume of
16 protected activity in recent memory.
17 Both of these would cancel the catalyst for
18 these disclosures and would significantly undermine law
19 enforcement.
20 The third is simply imposing blanket prior
21 restraint on the corporate labor force, that they
22 couldn’t say nothing to nobody without advance notice 131
1 and permission.
2 Prior restraint is the primary obstacle or
3 challenge for freedom of speech, and the corporate
4 whistleblower laws are designed to protect corporate
5 freedom of speech when there's a public interest stake.
6 They cannot coexist with blanket prior
7 restraint, and that’s why the Federal Whistleblower
8 Protection Enhancement Act has two provisions in it
9 that outlaw gag orders which would conflict with its
10 protections.
11 It makes trying to issue or implement or
12 enforce those gag orders a violation of the
13 Whistleblower Protection Act per se, because it cuts
14 off the flow of information. It's not even necessary
15 to retaliate. The information never gets out of the
16 box.
17 We don’t need to wait, however, for statutory
18 reforms. The Department can do this through
19 regulations.
20 A fourth common tactic is to declare/require
21 as a exit condition for the employee to receive
22 severance or benefits and avoid future problems that 132
1 they sign a declaration that the corporation is
2 innocent of any wrongdoing under Federal law.
3 To the extent that the employee is aware of
4 any wrongdoing, again, this triggers all the same
5 prejudices that will open the door, then, for an
6 investigation of what the employee is aware of so that
7 it can be cleaned up before the government becomes
8 aware of it.
9 And finally, a very significant indirect
10 restraint on speech is slap suits against employees for
11 violating these provisions.
12 Very frequently, the provisions themselves
13 are void as a matter of public policy or they're
14 defective on numerous grounds, some of which I've
15 covered in this summary, but the employees are sued for
16 breach of contract, they're referred for criminal
17 investigation and prosecution, they are the subject of
18 unrestrained legal attacks on them because they have
19 provided evidence to relevant law enforcement
20 authorities.
21 Unemployed whistleblowers cannot afford to
22 call the legal bluff that many of these lawsuits pose, 133
1 represent, and it means merely by having the money to
2 file them, the companies can frustrate the purpose of
3 the corporate whistleblower laws.
4 These are just five highlighted examples of
5 the type of tactics which are making the current
6 Department of Labor anti-gag system just a little bit
7 out of date. It needs to be modernized.
8 Our petition is fairly straightforward.
9 We're petitioning the Department to say that it
10 violates the whistleblower protection statutes and DOL
11 is charged with enforcing if a company issues,
12 implements, or tries to enforce one of these
13 nondisclosure de facto gag orders, nondisclosure
14 policies, forms, or agreements.
15 This would sweep everything out from
16 confronting the employee at the initial job interview
17 with these demands to filing a lawsuit against them
18 that was contrary to the DOL rule.
19 That itself would be retaliation, illegal
20 retaliation.
21 The second thing that we're petitioning is
22 for systematic fact-finding on the scope of this 134
1 phenomenon. The Department needs to be aware of it in
2 order to keep pace with the tactics and to keep pace
3 with new developments and evolutions of these tactics.
4 They're limited only by the imagination.
5 Finally, proactive guidance to help prevent
6 these practices from recurring and to provide warnings
7 to the industry.
8 These proposals are not particular bold or
9 creative.
10 As I stated, they mirror provisions of the
11 Whistleblower Protection Enhancement Act, and actually,
12 they mirror appropriations restrictions that have
13 existed on Federal spending that could undercut
14 whistleblowing since 1988, since fiscal year 1988.
15 They are consistent with a similar petition
16 that the Labaton Law Firm and Jordan Thomas have filed
17 with the Securities & Exchange Commission, and are
18 being taken very seriously.
19 We're meeting with the Commission staff next
20 week to follow through on their enforcement, and
21 they're starting to take enforcement actions against
22 firms which engage in these practices. 135
1 But the Securities & Exchange Commission and
2 even the Whistleblower Protection Act programs are a
3 very tiny fraction of the labor force compared to the
4 workers who are protected by the Department of Labor
5 statutes which you're advising on.
6 So, our plea is for the Department of Labor
7 to catch up and for you folks to help the Department do
8 it.
9 Thank you.
10 CHAIR SPIELER: Thank you, Mr. Devine.
11 I'm wondering if members of the committee
12 have discrete questions for clarification, would you be
13 willing to respond to them?
14 MR. DEVINE: Oh, absolutely.
15 CHAIR SPIELER: Are there questions for Mr.
16 Devine?
17 MS. TUCKER-HARRIS: You stated that the way
18 currently it works is that the whistleblowers are
19 subject to legal prosecution? Could you please explain
20 that?
21 MR. DEVINE: Yeah. There haven’t really been
22 any restraints on the scope of legal counterattacks. 136
1 The most common is suits for damages for
2 breach of contract, but there have been tortes filed
3 for theft of company property, misappropriation of
4 company property, for failing to honor responsibilities
5 to protect the company's process by sharing it with law
6 enforcement officials.
7 There have been referrals for criminal
8 prosecutions. There are suits against the lawyers who
9 represent the whistleblowers who make disclosures to
10 the government, bar actions that are attempted against
11 them.
12 The scope of the counterattacks has been
13 limited only by the imagination.
14 MS. TUCKER-HARRIS: Thank you.
15 CHAIR SPIELER: Nancy.
16 MS. LESSIN: You can determine whether this
17 is clarification, but in order to do the things that
18 you're asking, who needs to do what? Is this something
19 that can be done internally? Is this something that is
20 a new regulation? Is this something that -- can you
21 just describe a little bit about what it would take to
22 do what you're asking? 137
1 MR. DEVINE: Well, the Secretary of Labor,
2 presumably through the assistant secretary, could issue
3 a policy that guides enforcement to challenge these
4 types of practices as violations. That would be the
5 most expeditious way to start neutralizing the
6 practice.
7 It could also be done through proposed
8 regulations that have more legal authority, but
9 frankly, in my opinion, aren’t necessary to guide the
10 Department's exercise of discretionary authority.
11 MR. KEATING: I don’t have so much a question
12 as a comment.
13 CHAIR SPIELER: I think you should save it,
14 then, cause we'll have a conversation about this in
15 terms of whether we want to take it up at all, and
16 we'll do that tomorrow.
17 So, what I had hoped was that we could get
18 any clarifications we needed now from Mr. Devine and
19 not engage in a full conversation about it until later,
20 if that’s okay.
21 MS. NARINE: Then I'm not sure if I should
22 ask my question. 138
1 MR. KEATING: The only problem with that,
2 Emily, is that I don’t think Mr. Devine will be here to
3 hear the comment, as opposed to --
4 CHAIR SPIELER: But I'm not sure -- with all
5 due respect to Mr. Devine, do we need him here to hear
6 your comment?
7 MR. KEATING: As long as what we're going to
8 say is going to be on the record in response to some of
9 his representations.
10 CHAIR SPIELER: Actually, what I'm
11 specifically trying to avoid here is a back-and-forth
12 with Mr. Devine on the substance.
13 I think that we can talk among ourselves with
14 the assistance from the OSHA staff about what he's
15 presented, and I wanted to make sure that we understood
16 what was presented in order to have that conversation,
17 but I don’t think we need to respond to it on the
18 record at this point in order to make the record clear.
19 MR. KEATING: Okay. Then I would like to
20 make one comment for the WPAC, not in response,
21 necessarily, to Mr. Devine, but as you know, I have
22 worked with John and the best practices committee for a 139
1 year-plus now trying to come up with some clear
2 guidance for employers, because in my view, as I've
3 said from the first meeting, there are two ways that we
4 can try and change behavior and protect whistleblowers.
5 One is through enhanced enforcement
6 initiatives, and another is through providing clear
7 guidance so that employers know what is the right thing
8 to do, and one of the things that has happened in very
9 recent weeks is the stepped-up enforcement, led first
10 by the SEC in its now somewhat famous 135,000 --
11 CHAIR SPIELER: I think we just had a
12 miscommunication that I want to clarify. This is
13 exactly the conversation I think we should have
14 tomorrow.
15 MR. KEATING: All I was saying is I think it
16 would be helpful for the best practices initiative if
17 we could tomorrow talk about how we can expand the
18 emphasis on that area.
19 CHAIR SPIELER: We absolutely, I think,
20 should include that in our conversation about best
21 practices, and in fact, I believe, from conversations
22 I've had with some other members of the committee that 140
1 there are other areas in which we may want to suggest
2 expansions or modifications of the current report
3 that’s come to the full committee, and we'll talk about
4 this tomorrow, but what I am hoping we can do is add
5 those concerns to the report we then send on to OSHA,
6 hopefully by the end of the day tomorrow, and I
7 absolutely agree that it should be added to the
8 discussion.
9 MR. KEATING: Okay.
10 MS. NARINE: I don't know if you were reading
11 from a document. I have a number of questions on some
12 of the points that you raised, but if you were
13 summarizing from something that you were reading and
14 that document could be provided to us, it would be
15 helpful, so I wouldn’t have to ask any questions.
16 CHAIR SPIELER: So, the petition has been
17 filed --
18 MS. NARINE: Okay.
19 CHAIR SPIELER: -- and I believe it's a --
20 it's certainly a public document.
21 MR. DEVINE: I'm glad to share it. I only
22 brought one. 141
1 MS. NARINE: Then you won't get it back.
2 CHAIR SPIELER: So, I'm not sure we can
3 really discuss it in depth at this meeting, and it may
4 require us to bring it back to the committee later, but
5 is it posted anywhere, Tom?
6 MR. DEVINE: I'm assuming that it's posted on
7 Mr. Zuckerman's -- yes, it is.
8 CHAIR SPIELER: Okay. We'll make sure that
9 it's available to the full committee, and if it would
10 be helpful to have it before tomorrow, we probably
11 could do that, but my suggestion is that -- we will
12 circulate the link to the document to the committee
13 immediately after closing today, and it will be
14 available to you.
15 MR. DEVINE: I'm glad to email a copy, too,
16 but I think you folks have it.
17 CHAIR SPIELER: Yeah, I think so, too. And
18 to the extent possible, we will roll it into our
19 conversation tomorrow about best practices, which is
20 not necessarily completely relevant to the petition
21 that’s -- in terms of the OSHA processes, but may be
22 relevant to the recommendations we make with regard to 142
1 best practices.
2 Further comments or questions for Mr. Devine?
3 (No response.)
4 CHAIR SPIELER: If not, I want to thank you
5 for bringing this to our attention and for spending the
6 time with us this afternoon.
7 MR. DEVINE: Thank you.
8 CHAIR SPIELER: I believe that concludes the
9 agenda for this afternoon. We will convene again in
10 this room at 9:00 o'clock tomorrow morning.
11 The agenda for tomorrow, as you know, is that
12 we will be -- for the lion's share of the day, we will
13 be discussing the best practices proposal.
14 John will be making an initial presentation,
15 in the order of an hour, and then we will work our way
16 through the proposal.
17 Just for you to think about, I have a couple
18 of suggestions about this.
19 One is that we not vote on it along the way
20 but that we vote as a package at the end to transmit it
21 forward, or presumably not, and the second is that we
22 be able to articulate either things that we believe are 143
1 missing and should be added or things that you have
2 concerns about, and we will transmit it with those
3 comments to OSHA so that the final document -- rather
4 than trying to wordsmith what is a lengthy and complex
5 document tomorrow, I have been specifically asked by
6 the Assistant Secretary for us to make every effort to
7 turn this over to OSHA at the close of this meeting so
8 that they can begin to work on it internally, and so,
9 what I hope we can do is forward it with our comments
10 and thoughts to OSHA for them to get to work on it.
11 We will then, at the close of the day,
12 discuss next steps for WPAC, some of which may involve
13 some of the issues that have been raised to us today,
14 and anything else that you want to discuss.
15 My plan is to meet with the new Director of
16 DWPP after she finds her balance and make sure that
17 we're in concert and can plan our next work with her.
18 So, I will be doing that over the next couple
19 of months, but I think any conversation we can have
20 about our future work tomorrow would very much inform
21 that process.
22 Marcia. 144
1 MS. NARINE: I have a concern, then, if there
2 is an attempt to try to bring the last proposal into
3 the best practices work that you want to turn in
4 tomorrow, because that could be a whole three-day
5 conversation in itself, and that’s what my concern
6 would be.
7 CHAIR SPIELER: And it may be that we will
8 choose to hold that back. That is, I think, one option
9 for things that are newly raised, would be to say
10 here's as far as we got, here's some issues that we've
11 decided need further conversation by the committee, and
12 that we want to make sure that OSHA understands that
13 it's not yet a complete document.
14 MS. NARINE: We spent a year just haggling
15 over sentences in this document.
16 CHAIR SPIELER: I absolutely do not want
17 tomorrow's meeting to be a wordsmithing meeting,
18 because at the end of the day, the wordsmithing is
19 going to be done by OSHA.
20 So, my goal as chair is going to be to try to
21 keep us on track in order to transmit to OSHA a usable
22 document that they could get to work on. 145
1 MS. NARINE: That was my concern, to say we
2 recommend you think about this, but we haven’t had a
3 chance to fully flesh out all of the issues.
4 CHAIR SPIELER: Yeah.
5 MS. NARINE: Okay.
6 CHAIR SPIELER: So, that essentially shapes
7 tomorrow, and with that, we will adjourn until tomorrow
8 morning at 9:00 o'clock.
9 (Whereupon, at 3:56 p.m., the committee
10 adjourned, to reconvene Tuesday, April 21, 2015, at
11 9:00 a.m.)
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